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Border program to expel migrants must stay in place for now, Supreme Court says


Migrants in Juarez, Mexico survey the other side of the Rio Grande, where other migrants have gathered at a blockade opposite Texas National Guard soldiers, part of a “contingency border force,” on Tuesday, Dec. 20, 2022.

By Eileen Sullivan and Adam Liptak


The Supreme Court said earlier this week that a pandemic-era health measure that restricted migration at the southern border would remain in place for the time being, delaying the potential for a huge increase in unlawful crossings.


In a brief, unsigned order, the justices halted a trial judge’s ruling that would have lifted the measure, known as Title 42, which has allowed even migrants who might otherwise qualify for asylum to be swiftly expelled at the border.


The court said that it would hear arguments in the case in February and that the stay would remain in place pending a ruling. The justices said they would address only the question of whether the 19 mainly Republican-led states that had sought the stay could pursue their challenge to the measure.


Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Ketanji Brown Jackson dissented.


President Joe Biden said a decision on Title 42 was overdue, adding that in the meantime the public health order must be enforced.


Karine Jean-Pierre, the White House press secretary, said that the White House would be “advancing our preparations to manage the border in a secure, orderly and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration.”


Tuesday’s decision comes as border towns have already been struggling with a swelling number of crossings by migrants from many countries, mainly in South America and Asia, whose nationals have not been subject to the expulsion policy. While temporary, the court decision offers a reprieve for the Biden administration, which had been preparing for the possibility of thousands of additional migrants a day, had the policy been lifted.


“The administration asked to end Title 42, but there was no clear plan for how they would have managed the inevitable influx,” said Justin Gest, a professor at George Mason University who studies the politics of immigration.


“The ruling brings a sense of relief that officials may not publicly acknowledge,” he said.


The number of migrants apprehended at the southern border already surpassed 9,000 per day on three occasions in a 10-day span in December, a record number. About 1,500 people, mostly Nicaraguans who had been victims of a mass kidnapping in northern Mexico, crossed from Ciudad Juárez to El Paso, Texas, on Dec. 11 alone, straining the city’s shelters and prompting migrant families to sleep on the streets in freezing temperatures.


Still, humanitarian organizations that operate shelters along the U.S. side of the border derided the court decision. They said it keeps in place a policy that is preventing migrants who are fleeing violence and persecution from obtaining the safe harbor to which they are entitled under U.S. and international law.


The expulsion policy, first introduced by the Trump administration in March 2020, has been used to expel migrants — including many asylum-seekers — about 2.5 million times.


“All of us know that Title 42 has nothing to do with the pandemic. It’s an immigration enforcement tool used to deny people access to asylum,” said Ruben Garcia, who oversees a constellation of shelters in El Paso.


“I would have thought the Supreme Court would say that if you want something like Title 42, then pass legislation,” he said, adding, “It’s a very sad day.”


“We are deeply disappointed for the desperate asylum-seekers who will continue to be denied even the chance to show they are in danger,” said Lee Gelernt, a lawyer with the American Civil Liberties Union, which represents migrants challenging the expulsion policy. “But this ruling is only temporary, and we will continue this court battle.”


Gorsuch, joined by Jackson, said the legal question the court agreed to address, about the states’ intervention, “is not of special importance in its own right and would not normally warrant expedited review.”


By issuing a stay while it addressed that question, he added, the court effectively took an incorrect position, at least temporarily, on the larger issue in the case: whether the coronavirus pandemic justifies the immigration policy. The federal Centers for Disease Control and Prevention had initially adopted the policy to prevent cross-border transmission of the disease, a policy that the agency has since said is no longer medically necessary.


“The current border crisis is not a COVID crisis,” Gorsuch wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”


Sotomayor and Kagan did not join Gorsuch’s dissent and gave no reasons for their votes against granting the stay.


The court’s order was a provisional victory for the 19 states that had sought to keep Title 42 in place, saying that states often must bear the brunt of impacts from a surge in border crossings. “The failure to grant a stay will cause a crisis of unprecedented proportions at the border,” lawyers for the states wrote in an emergency application, adding that “daily illegal crossings may more than double.”


With Title 42 in place, in most cases, migrants were returned to Mexico or to their home countries, especially Mexico, Honduras, Guatemala and El Salvador. But many migrants have been allowed to stay in the country because they come from countries that have strained diplomatic relations with the United States or are nationals whom Mexico has refused to accept. These include migrants from Cuba, Colombia, Russia and, until recently, Venezuela.


“We have been seeing the demographics change drastically, and the number of people coming through from those other countries has been increasing steadily for several months,” said Diego Piña Lopez, associate director of Casa Alitas, a shelter network in Tucson, Arizona, affiliated with the Catholic Church.


After Title 42 was put into place at the border, migrant encounters increased every month for 15 consecutive months — in part because the use of Title 42 at the border has encouraged migrants to attempt to cross multiple times after being expelled.


Meanwhile, those stranded in Mexico have endured kidnapping, extortion and other violence at the hands of criminal enterprises. Human Rights First, a nonprofit organization, has recorded more than 13,000 attacks on people waiting in Mexico since Biden took office.



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