Citing the policy as arbitrary and capricious, a group of asylum-seekers asked a federal judge to end the policy giving immigration authorities the option to quickly remove migrants due to COVID-19 concerns. The court previously granted a similar request, resulting in a class-wide order ending the Title 42 expulsion process for individuals arriving in the U.S. with at least one child and who may be subject to removal. However, following that class-wide order, it was later found that only individuals who would return to locations where they may be subject to torture or persecution would be allowed to remain.

The Biden administration stated Title 42 would be ended in May 2022. However, due to ongoing challenges from a number of states, the policy remains in place, pending the outcome of their legal efforts. Originally, the policy was enacted by the Biden administration.

However, previous legal actions have not cited the arbitrary and capricious claim. A matter decided without reasonable grounds or enough consideration of the circumstances is said to be arbitrary and capricious.

The Centers for Disease Control (CDC) terminated Title 42 entirely as the public health necessity no longer exists. However, the policy is in place indefinitely due to another court finding. That court did not consider the arbitrary and capricious claim. The plaintiffs in the case are asking the judge to provide a summary judgment based on that claim.

The plaintiffs cite the CDC using the “least restrictive means necessary” in the protection of public health. However, the CDC abandoned that approach when Title 42 was enacted. As a result, they claim Title 42 is an arbitrary policy. As part of the Administrative Procedure Act, agencies are not to stray from prior policies without a clear and supportive explanation for the departure. However, the CDC never explained why they left the ‘less restrictive means’ standard.

In addition, the plaintiffs claim that the goal of limiting the spread of COVID-19 in the U.S., the goal of the Title 42 policy, is not based on current circumstances. In agreement with the Biden administration announcement intending to end the policy, the plaintiffs point to the wide availability of vaccines and testing to limit risk. Further, immigrants are not a source of COVID-19 in the U.S. Other individuals that are not required to test to cross the U.S. border are of bigger concern and are a larger population overall.

Finally, the plaintiffs say the CDC didn’t take into consideration the human effect the Title 42 expulsion policy would have on migrants, many of who are vulnerable. In the public comments response to Title 42, poverty and food insecurity in several Central American countries were noted, as well as cartels controlling areas of Mexico that border the United States. These concerns were never addressed or explained by the CDC, proving a lack of sufficient consideration of the impact of the policy.

In their complaint, the plaintiffs request the court permanently prohibit the policy to be applied to the class members.

ILBSG actively monitors legal actions that may affect U.S. immigration to ensure our clients get the right advice. Contact us to work with our experienced team of immigration attorneys to see how we can help you.

Explusion Policy Title 42