Federal Judge Sullivan of the Washington DC District Court issued a ruling vacating the controversial Title 42 policy, permanently enjoining the Department of Homeland Security (DHS) from applying it to migrants crossing into the US.

The ruling decided a lawsuit brought by a group of asylum-seekers against DHS, wherein the plaintiff group claimed that Title 42 was an arbitrary and capricious immigration policy that harms expelled migrants, and sought a court order prohibiting its application (for more, see our articles here and here).

In his opinion, the Judge agreed that Title 42 was arbitrary and capricious under the Administrative Procedures Act (APA), citing the Centers for Disease Control (CDC)’s failure to “consider…important alternative[s]” to Title 42, to “ignore the harm that could be caused by issuing its Title 42 orders,” and to “deal with newly acquired evidence” regarding vaccines. Judge Sullivan wrote, “[i]t is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor.”

Just hours after Judge Sullivan issued his order to end Title 42’s application, DHS filed a motion to stay the order for five weeks, citing the need to prepare to transition away from Title 42 and back to pre-pandemic immigration law under Title 8 processes. On Wednesday, Judge Sullivan granted the order “WITH GREAT RELUCTANCE,” giving DHS until midnight on December 21, 2022, to get border affairs in order.

DHS’s motion is the only anticipated reaction, as it does not appear that the Biden administration intends to appeal the ruling. However, in back-to-back statements following the order, DHS cautioned that the court ruling might fuel smugglers trying to convince migrants to make the dangerous journey to the US.

For now, the Biden administration will continue to phase out Title 42’s application to migrants seeking asylum, no longer immediately sending all asylees home for processing. By 2023, Title 42 is expected to be entirely vacated.

Background on Title 42

“Title 42” refers to a series of policies and orders that are rooted in the Public Health Services Act of 1944, which gives the federal government unique powers to respond to an emergency major health crisis. In this case, the Trump administration used the Title 42 provision of the Act, which had never been used before, in March 2020 to drastically curb immigration in the wake of Covid-19.

Under the Title 42 policy, DHS enabled the CDC and Department of Health and Human Services (HHS) to close the US borders with Mexico and Canada; and to authorize agents of Customs and Border Patrol (CBP) and USCIS officers to deny refugees and asylees access to the US, and the processes of US asylum law, in order to prevent the spread of Covid-19.

Before the pandemic, the agencies would temporarily house asylees who had entered the US and were awaiting credible fear interviews with CBP. There were already numerous issues with overcrowding, lack of resources, and separation of families as the agencies struggled to process the huge number of migrants. Covid-19 only exacerbated the problem, and the Trump administration decided Title 42 was the optimal, and purportedly temporary, solution.

Per this CBS article, “[t]he Biden and Trump administrations have argued that Title 42 supersedes U.S. asylum law, which allows migrants on U.S. soil to seek protection, regardless of their legal status. Hence, those processed under Title 42 are not allowed to file an application for asylum as a means to stop their expulsion.”

The practical application of Title 42, as amended by the CDC in August 2021, is that refugees and asylees attempting to enter the US at the southern border are swiftly turned away, returned to their country of origin where feasible; and, where not feasible, to Mexico to await their interviews with CBP.

The Biden administration continued to implement Title 42 extensively for well over a year, as the policy remained one of the only “effective” tools for addressing the crisis at the southern border – large numbers of migrants continued to seek entry into the US, and the Covid-19 pandemic had crippled existing agency resources that could have been used to process everyone’s cases. Per the New York Times, “[t]he number of migrants encountered along the U.S.-Mexico border in the fiscal year 2022 exceeded 2.3 million, a record high fueled by migration from Cuba, Venezuela, and Nicaragua. Thousands of Ukrainians and Russians also sought entry, as well as people from Africa and Asia, where economies have been battered by the pandemic and inflation triggered by the war in Ukraine.”

In April of 2022, the CDC and the Biden administration issued an order terminating Title 42, stating that “the readily available and less burdensome public health mitigation tools to combat [Covid-19],” such as widely-available tests, treatments, and vaccinations, rendered the policy “unnecessary.” According to CNN, DHS also released a 20-page plan for managing the anticipated increase of migrants upon Title 42’s repeal. This decision was blocked a month later, however, when a federal court in Louisiana ruled that the policy must remain. ACLU attorney Lee Gelernt said Judge Sullivan’s latest decision renders the Louisiana ruling moot.

Last month, the Biden administration expanded Title 42 to cover Venezuelan migrants, effectively extending Title 42’s reach to all of Central America and Mexico. Now, those expansions are ineffective once Title 42 is officially vacated in December.

 

Response to the Ruling

Recently, reactions to the order vacating Title 42 have been mixed.

Many immigration advocates have praised the ruling, sharply criticizing Title 42 as the Trump Administration’s attempt to expel migrants in a broad sweep under the guise of a public health concern.

Amnesty International USA’s Americas Advocacy Director Amy Fischer said in a statement, “Title 42 was never about public health, it was always a racist ploy to weaponize the COVID-19 pandemic to block the human right to seek asylum – a right enshrined under both U.S. and international law.” Jaclyn Kelley-Widmer, professor of immigration law and director of Cornell University’s Immigration Law and Advocacy Clinic, said “The court’s opinion suggests that not only is Title 42 no longer justified but that it was never properly in place.”

On the other hand, others characterize Title 42 as President Biden’s last remaining tool to combat the exploding number of migrants at the southern border.

In a recent Reuters article, Rosa Maria Gonzalez, head of the Mexican lower house of Congress migration committee, characterized the ruling as a “double-edged sword” for Mexico – “While it should relieve pressure on Mexico’s northern border by reducing the build-up of people there under the expulsion order…it also risked encouraging more people to make the journey north to pursue U.S. asylum claims.”

The Washington Times reported that “…security experts say the Biden administration remains unprepared for the surge of people to come,” and “[a]dministration officials had previously predicted that levels of illegal immigration across the southern border could reach 18,000 people a day. The current rate runs at about 7,000.” CBP data for 2022 indicates that over 2.7 million migrants were apprehended on the southern border, a 41% increase from 2021.

Per CNN – “Months ago we heard officials allude to the plans they had for managing migration at the border once Title 42 was lifted. Now the judge’s ruling forces the Biden Administration’s hand.”

 

Final Word on Title 42

Both sides of the political aisle appear to agree that Title 42 was an imperfect solution with devastating consequences. But the reality is that there is likely no good answer to the problem of fairly processing the sheer amount of asylum cases presented to CBP every day. The US government committed to giving asylees a fair opportunity to plead their cases and seek safety in this country but is also clearly ill-equipped to do so. Now that Title 42 is vacated, US lawmakers will have to find a solution. A recent piece by Reason put it this way – “As the policy is phased out, federal officials must restore orderly means of asylum-seeking and build out opportunities for temporary work visas and economic migration—both of which will reduce illegal migration.”

We continue to monitor updates to immigration policy. If you have questions about asylum or any other immigration-related issue, contact us at ILBSG. We put our expertise to work for you, so you can get the right advice.

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