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Judge invalidates rule allowing migrant expulsions on border


A Department of Public Safety agent records identification information for migrants before they are transported to a processing center, in Kinney County, Texas on Nov. 15, 2021

By Miriam Jordan and Eileen Sullivan


A federal judge earlier this week blocked the government from continuing to use a Trump-era public health emergency measure to swiftly expel migrants who cross the southern border unlawfully, an order that could enable thousands of potential asylum-seekers to enter the country.


Judge Emmet Sullivan for the U.S. District Court for the District of Columbia concluded that the measure, known as Title 42, was “arbitrary and capricious” and had been implemented in violation of the Administrative Procedure Act.


Originally invoked by the federal Centers for Disease Control and Prevention, Title 42 has been used as a key enforcement tool at the border since the Trump administration first implemented it. The measure has held back thousands of migrants who otherwise would most likely be allowed to enter the country and process asylum claims.


Most migrants affected by the measure are those whom Mexico agrees to accept; other migrants must be detained and flown to their home countries if not given authority to enter the United States.


The decision will lead to a significant change in how the Biden administration manages what has been a record number of unauthorized border crossings. The public health authority allows border officials to act more quickly than under the ordinary procedures that are designed to guarantee migrants the right to petition for refuge in the United States.


Backlogs at the border, before Title 42 was imposed, had sometimes caused overcrowding in holding facilities, which drew condemnation from human rights groups, created images of chaos and raised questions about the administration’s ability to handle the influx.


“What this means is that normal immigration law is in effect at the border. Migrants cannot be expelled to Mexico or their home countries,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council.


“There could be a sudden surge in overcrowding, as the agency tries to frantically find bed space to put people,” he said.


The Homeland Security Department late Tuesday filed for a five-week delay before the order went into effect to give officials time to prepare.


“During the period of this freeze, we will prepare for an orderly transition to new policies at the border,” Marsha Espinosa, a department spokesperson, said in a statement.


Under the ruling, migrants who come to ports of entry along the border would not be turned away but would be allowed to lodge asylum petitions and perhaps remain in the country while they are under review.


The U.S. Border Patrol used the health order more than 1 million times last year, primarily to turn back migrants from Mexico and Central America. More recently, the measure was invoked against Venezuelans who had been crossing the border in large numbers after fleeing their broken country.


Earlier this year, the Biden administration announced that it had planned to suspend the measure and resume normal border processing procedures, only to be blocked by a federal judge in Louisiana after Republican states filed suit.


“The ruling hopefully puts an end to Title 42 for good and will restore our country’s long commitment to providing desperate asylum-seekers with an opportunity to present their case,” Lee Gelernt, a lawyer for the American Civil Liberties Union, said. It filed a suit on behalf of a group of asylum-seeking families who were not able to enter the United States.


It is possible that Republicans, who have supported the continued use of the order, could introduce legislation next year to keep it in place. But it would probably die in the Democrat-controlled Senate.


In requesting the emergency delay of the judge’s order, the government said it would need to move additional resources to the border and coordinate with nongovernmental organizations and state and local governments to help prepare for what is expected to be a large new influx in migrants.


Last month, nearly 40% of migrants who crossed the border were expelled under Title 42.


Sullivan said that in adopting a measure intended to control the movement of the coronavirus across the border, the CDC had failed in its obligation to apply the least restrictive means necessary to prevent spread of disease, and that the agency had not properly explained why it took this action.


He said that the government had not shown the policy to be effective as a measure to control the spread of disease.


“The lack of evidence regarding the effectiveness of the Title 42 policy is especially egregious in view of CDC’s previous conclusion that the use of quarantine and travel restrictions, in the absence of evidence of their utility, is detrimental to efforts to combat the spread of the communicable disease,” the judge wrote in the 49-page ruling.


He noted that at the same time Title 42 was preventing asylum-seekers from entering the country, millions of other travelers were crossing the border under less restrictive standards, such as in buses and cars.


Sullivan referred to evidence provided by plaintiffs in the case that during the first seven months that Title 42 was in place, border authorities encountered on average “just one migrant per day who tested positive for COVID-19.”


The judge also agreed with the ACLU’s argument that the agency had failed to consider alternatives such as processing migrants outdoors and ramping up vaccinations to limit the spread of COVID-19.


The Homeland Security Department developed plans to address a spike in migration last spring, when President Joe Biden, trying to end some of the most restrictive immigration policies of his predecessor, signaled his plans to end the policy, which the Trump administration introduced in March 2020.


Several border states went to court in an attempt to preserve Title 42, arguing that its end would cause a drastic increase in migrant arrivals.


(The government recently expanded the use of Title 42 to address large numbers of Venezuelans crossing the border. At the same time, the administration created a narrow legal path for up to 24,000 Venezuelans to come to the country by obtaining sponsors and applying from outside the country for humanitarian parole. Officials have credited the combination of the two actions with slashing the number of Venezuelans crossing illegally.


Those numbers will likely go up now that the public health authority is off the table.


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