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Biden must halt any resumption of pre-COVID border policy, judge says


A group of migrants who said they were from Mexico are photographed after they were apprehended in Kinney County, Texas, Nov. 17, 2021.

By Miriam Jordan and Eileen Sullivan


A federal judge on Monday said he would block the Biden administration from exempting migrants from expulsion under a Trump-era public health order until the policy is officially lifted next month.


The federal government has announced plans to lift the order, known as Title 42, on May 23 — a move that is expected to create a considerable surge of migration from Mexico. Several states have challenged the plan, saying it will create chaos on the border and lead to significant impacts on states forced to handle the newly arriving migrants.


Judge Robert R. Summerhays of the U.S. District Court for the Western District of Louisiana did not yet rule on the issue of whether Title 42, adopted early in the coronavirus pandemic, should be kept in place. But he said he would in the meantime grant a request from the states of Missouri, Louisiana and Arizona to prevent the federal government from taking any early steps to disregard Title 42 for certain migrants and process them under normal immigration procedures.


In their lawsuit, the states said there were indications that many migrants from Guatemala, Honduras and El Salvador already are not being subjected to Title 42 expulsions, more than a month before the scheduled lifting of the order.


“Thus, while Title 42 may be ‘technically still in place,’ the reality on the ground is that DHS ‘has largely stopped using Title 42 to remove migrants from Northern Triangle countries,” the states’ motion said, quoting a report from Fox News.


The Department of Homeland Security acknowledged in its response to the motion that it had begun processing some migrants from Central America — about 14% during a recent one-week stretch — under prepandemic guidelines. However, the agency said, the migrants were not necessarily being allowed to remain in the country, but were being placed in expedited removal proceedings, which make it more difficult to reenter the country later.


In the states’ proposed order, which Summerhays said he would sign, the states called for a halt to any action that “formally implements” the termination of Title 42 or which has “substantially similar effect.”


Summerhays, an appointee of President Donald Trump, whose administration initially adopted the public health order, also ordered the government to certify under oath that agencies had not taken any actions over the past month that could be “reasonably characterized” as carrying out the termination order ahead of May 23.


The public health policy was initially adopted in 2020 to slow the spread of COVID-19. Its effect has been to substantially reduce the number of migrants allowed to enter the United States, a key goal of Trump’s immigration policies.


President Joe Biden, who came to office vowing a more humane border policy, has nonetheless been scrambling to plan for the expected impact of lifting the public health order. Some predictions have suggested that about 12,000 to 13,000 migrants a day could cross the southern border once the policy is no longer in place. The administration has been preparing for up to 18,000 daily border crossings — a huge increase over the current rate of about 8,000 a day.


The motion filed by the three states calls for requiring the Department of Homeland Security to halt any processing of migrants from El Salvador, Guatemala and Honduras in the manner done before the public health measure, which essentially allowed many migrants to enter the United States and file asylum claims.


The temporary restraining order will end in 14 days, it said, unless the court takes action to dissolve or extend it before its expiration.


The three states filed a lawsuit April 3, two days after the federal Centers for Disease Control and Prevention issued its order directing an end to the policy in May. On Friday, they asked that the court issue a temporary restraining order to halt any early winding down of Title 42, saying it appeared that the federal government was “partially implementing the termination order already,” well ahead of May 23.


Summerhays announced his intention to grant the motion during a virtual status conference on the case.


Since its introduction in March 2020, Title 42 has been invoked by officers along the southern border to expel migrants more than 1.8 million times — to Mexico or their home countries, including on flights — without allowing them to request asylum.


A number of Republican lawmakers, as well as an increasing number of Democrats, had been critical of the plan to eliminate the measure because of the predictions of chaos that would ensue along the border.


At the same time, progressive Democrats had pressured the Biden administration to scrap the policy, which they said was no longer justified for health reasons and was instead being used to limit immigration.


Swelling numbers of migrant encounters by the U.S. Border Patrol gave Republicans ammunition to attack the administration for failing to control illegal immigration, even with the order in place.


Texas Attorney General Ken Paxton filed a lawsuit Friday against terminating Title 42, describing it as “the only” rule holding back a “devastating flood of illegal immigration.”


Authorities encountered more than 221,000 migrants last month, the largest number in at least two decades. In March, officials turned people away under Title 42 half of the time.


Human rights advocates say that Biden’s administration has used the public health measure to limit immigration.


“We have said from the start that it was never justified, and we applauded the CDC decision to lift the order,” said Robyn Barnard, senior advocacy counsel for Human Rights First. “It is clear from these lawsuits and attempts in Congress to keep Title 42 in place that all pretexts that this was a public-health measure were just that.”


Recent polling has suggested that lifting Title 42 was regarded unfavorably by a majority of voters, and the president’s party already faces headwinds going into the midterm elections.


The White House has said that Title 42 was a public health provision and that a determination to lift it was made by the CDC, compelling the government to prepare to handle an increase in the volume of migrants crossing the border.


Vedant Patel, a White House spokesperson, referred a request for comment on the filing and questions of whether the administration would appeal to the Justice Department. In a tweet, Missouri’s attorney general, Eric Schmitt, wrote, “Our Office just obtained a temporary restraining order to keep Title 42 in place. This is a huge victory for border security, but the fight continues on.”

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