Dario Lopez-Mills/AP Photo
A group of migrants stand next to the border wall as a Border Patrol agent takes a head count in Eagle Pass, Texas, May 21, 2022.
A federal judge of the D.C. District Court has struck down the use of Title 42 to expel migrants in the case Huisha-Huisha v. Mayorkas. Upon request from the Biden administration, Judge Emmet Sullivan also granted a five-week period before the implementation of the order, which will take effect on December 21.
Title 42, a measure that is part of a broader 1944 law called the Public Health Services Act, allowed the Department of Homeland Security to reject and expel migrants at the border to stem the spread of disease. It was resurrected under the Trump administration amid the early stages of the COVID-19 pandemic, and has expelled over one million migrants.
The use of the law has been a point of contention for immigration advocates, who argue it violates migrant rights and is no longer applicable given the widespread availability of vaccines and treatments for COVID-19. Despite Biden’s promises to end Trump’s harmful immigration policies, the administration continued to expel migrants using Title 42. The use of the law attempted to rebut the charges of anti-immigration Republicans that devalued President Biden’s immigration policy, as well as manage an increasingly difficult situation at the U.S.-Mexico border.
Now that the policy has been struck down, Biden’s DHS must contend with a border teeming with migrants seeking asylum, without Title 42 to fall back on. Arrests at the border reached a record in August, surpassing two million in the 2022 fiscal year, according to data released from the U.S. Border Patrol. Many of those arrests include repeat crossers who were sent back using Title 42.
Under Trump, Title 42 was used to expel 80 percent or more of migrants encountered at the border on a monthly basis, according to the Pew Research Center. The Biden administration has used it to expel about 50 percent of migrants encountered as of March 2022. The Guardian reported that it has been used more than two million times since March 2020.
The administration had some success with ending Trump-era immigration policies by issuing executive orders to reverse them, but ran into conflict with ending Title 42 after the Centers for Disease Control and Prevention (CDC) announced its termination in April. In May, a federal judge in Louisiana prevented the Biden administration from ending the use of Title 42, siding with 24 states that complained about the cost burden of migrant entry.
That same month, Biden’s DHS reworked the original deal with Mexico to include Cubans and Nicaraguans. Under the original deal with the Mexican government, only migrants from Mexico, Honduras, El Salvador, and Guatemala were expelled to Mexico. In October, DHS again expanded the use of Title 42 to include Venezuelans crossing the border.
The challenge that caused Title 42’s demise was brought by the American Civil Liberties Union and its partners, who argued its use was in violation of “longstanding immigration statutes.” The ACLU initially challenged it under Trump, and then entered into negotiations with the Biden administration; those negotiations eventually stalled and led to the ACLU’s renewed challenge.
The administration had some success with ending Trump-era immigration policies by issuing executive orders to reverse them.
“We have said all along that using Title 42 against asylum seekers was inhumane and driven purely by politics,” Lee Gelernt, the ACLU’s lead lawyer on the challenge, said, celebrating Judge Sullivan’s decision.
“It’s a step towards ending this inhumane and illegal ban on asylum and towards restoring a humane and welcoming asylum process at the border, including at ports of entry,” Melina Roche, campaign manager for the Women’s Refugee Commission, told me.
The five-week delay will expire on December 21. The Biden administration argued that the delay was needed in order to coordinate with the necessary entities to resume processing asylum seekers; Judge Sullivan granted the delay with “great reluctance.” Melissa Crow, lead litigator at the Center for Gender and Refugee Studies (CGRS), an organization that was co-counsel on the case, told me that CGRS, the ACLU, and other partners did not oppose the delay in order to mitigate the possibility of the Biden administration appealing the decision and receiving a longer stay.
There is also a fear among immigration advocates that Congress will attempt to codify or expand the use of Title 42 through legislation. The five-week delay gives Congress an opportunity to pass that legislation in the lame-duck session, although time is short and Democrats already have a suite of priorities.
Further complicating the situation for Biden’s DHS is a ruling from August, in which a judge in the case Al Otro Lado v. Mayorkas, a class action lawsuit, ruled that the government’s long-standing “turnback policy” was illegal. When the administration’s five-week delay has passed, the administration will be unable to rely on these practices that have been cornerstones of border policy for the better part of a decade, and all of Biden’s presidency.
And so there is a need for a new approach to border policy, one that will need to be rolled out in record time. Among the challenges are finding enough resources and personnel to process asylum seekers. Immigration advocates, such as those aligned with the nationwide campaign Welcome With Dignity, stand at the ready, monitoring the situation on the ground and preparing to provide aid.
“This is a very welcome development,” Crow said. “But just getting rid of Title 42 is not the victory. We’ve got to make sure that the asylum process is fair and functional, and that people have a right to seek asylum in a meaningful way.”
