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Federal judge blocks Biden administration from ending Title 42

A migrant family waits to be processed May 5 in Roma, Tex. (Brandon Bell/Getty Images)

A federal judge in Louisiana on Friday prevented the Biden administration from reopening the borders to migrants and asylum seekers, a position backed by 24 states pressing concerns about the costs of illegal immigration and the spread of the coronavirus.

U.S. District Judge Robert Summerhays issued a preliminary injunction that stopped the administration’s plan to terminate on Monday an order known as Title 42, which has led to the swift expulsion of most unauthorized border crossers since the earliest days of the pandemic.

The judge sided with states that argued that the expected border influx would impose costs on them for services for the newcomers, such as health care and education, that the government should have considered.

“These costs are not recoverable,” the judge wrote. “The Plaintiff States thus satisfy the irreparable harm requirement for a preliminary injunction.”

He noted that the Centers for Disease Control and Prevention, which originally issued the order, did not subject its plan to terminate the order to public comment, which would have raised the states’ concerns — a likely violation of the Administrative Procedure Act. He said the government could have considered the states’ concerns and perhaps devised an alternative to its “blanket” order ending Title 42.

The nationwide preliminary injunction is a blow to President Biden’s promise to reopen the borders, and it means the Department of Homeland Security is expected to continue expelling migrants as the lawsuit makes its way through the courts. But the ruling also offers the White House a respite from border-related political pressures ahead of the November midterm elections, when Democrats risk losing their narrow hold on the House and the Senate.

The ruling by Summerhays, a Trump appointee, delivered a victory to Republican attorneys general who had sued to block the Biden administration from reversing the Trump administration policy.

“GREAT win for the rule of law today,” Arizona Attorney General Mark Brnovich, one of the plaintiffs, tweeted after the decision. In a video, he said the Title 42 order is “one of the last tools we have left in our toolbox” to stop an even greater influx of unauthorized immigrants.

Justice Department spokesman Anthony Coley said that the government will appeal the decision and that the CDC had lawfully determined that the pandemic’s current conditions rendered the mass expulsions unnecessary.

White House press secretary Karine Jean-Pierre said the administration “disagrees with the court’s ruling” but will continue to enforce Title 42 until the appeal.

“This means that migrants who attempt to enter the United States unlawfully will be subject to expulsion under Title 42,” she said in a statement. She said migrants also could be formally deported if they cannot be expelled.

The American Civil Liberties Union, which has filed lawsuits challenging the order, cautioned that the government’s power to expel migrants is not absolute, citing a ruling from the U.S. Court of Appeals for the District of Columbia Circuit, which takes effect Monday, that bars the government from expelling migrant families to countries where they might face persecution. The government will have to screen the families first.

“The ruling is wrong and we assume and expect the administration to take immediate action to undo the injunction,” said ACLU lawyer Lee Gelernt. “The states that brought the lawsuit are hypocritically only concerned with COVID restrictions when it comes to asylum seekers.”

Title 42 is shorthand for an emergency public health order that the CDC originally issued in March 2020 to swiftly expel unauthorized migrants even as President Donald Trump was downplaying the virus ravaging the United States. Biden rejected Trump’s anti-immigration agenda, but his administration maintained Title 42 for so long that he ended up expelling migrants more times than his predecessor did.

Nearly 2 million migrants have been expelled under Title 42 since the order began, federal records show — fewer than half a million under Trump. The order applies to migrants attempting to enter the United States illegally from Canada or Mexico.

The CDC decided to lift the emergency public health order on April 1 after growing calls from Democratic leaders and skepticism that it served any public health purpose, especially in GOP-heavy states where opposition to mask mandates and vaccines has allowed the virus to spread easily.

Republican attorneys general from more than 20 states, led by Louisiana, Missouri and Arizona, quickly sued the administration to stop the rescission, saying in court records that Title 42 was “the only safety valve preventing this Administration’s already disastrous border control policies from descending into an unmitigated catastrophe.”

Summerhays, who last month issued a temporary restraining order instructing the Biden administration to avoid winding down Title 42 until he could issue a decision, presided over a hearing a week ago where both sides laid out their cases.

Arizona Deputy Solicitor General Drew Ensign said at that hearing that the CDC should have taken public comment, one of several possible violations of the Administrative Procedure Act, when it decided to rescind Title 42.

“They regard the pandemic as an all-purpose, get-out-of-comment-free card that can be used for any and all covid regulation, and that’s simply not the case, Ensign said.

But federal officials said the fluid nature of the emergency did not require a public comment period and that the availability of vaccines, medical treatments and safety equipment had made it possible to restore normal operations.

Expelling migrants simply created a revolving door, officials said, sending people back to crime-ridden border cities in Mexico to try to enter the United States again. Officials said they planned to process asylum seekers and quickly deport or criminally prosecute other migrants who entered the United States illegally, a system they said had worked smoothly before Trump shut down the border.

For instance, nearly 30 percent of migrants the U.S. Border Patrol has apprehended since Trump imposed Title 42 in fiscal 2020 had previously attempted to cross illegally, a recidivism rate that is much higher than in 2016, the last year of the Obama administration, when it was 12 percent.

Title 42 “is disrupting the processing of immigration laws that Congress enacted,” Justice Department attorney Jean Lin said during the May 13 hearing. She said that legislators never intended for a rarely used emergency health provision such as Title 42 to turn into an immigration policy and that the order “should terminate as soon as practicable.”

What is Title 42? Explaining the contentious Trump-era border policy.

Officials are currently making 7,000 to 8,000 border arrests per day, but the Department of Homeland Security had estimated that the numbers could spike as high as 18,000 after Title 42 was lifted. U.S. Customs and Border Protection has made more than 1.47 million immigration arrests during the first seven months of fiscal 2022, which began in October, and about 87 percent of the arrests occurred on the U.S.-Mexico border.

CBP is expected to surpass last year’s record 1.73 million arrests on the southwest border, part of nearly 2 million arrests nationwide.

Advocates for immigrants say they are fleeing harm or pandemic-ravaged economies and should be allowed into the country to plead their cases, especially at a time when many states are experiencing labor shortages.

In one court filing, a migrant family from El Salvador turned away under Title 42 said they fled death threats from gang members and have been waiting for months in northern Mexico to seek asylum, even though they have U.S. citizen relatives in California waiting to welcome them.

“I am very sad and frustrated because all we want is to seek protection for our family,” Alicia De Los Angeles Duran Raymundo, 23, from Cuscatlan in El Salvador, along with her partner, Kevin De León, and her 6-year-old daughter, said in an affidavit. “We are not safe in our country or in Mexico.”

Democrats such as Senate Majority Leader Charles E. Schumer (N.Y.) and Sen. Robert Menendez (D-N.J.), chair of the Senate Foreign Relations Committee, had called on the Biden administration to terminate Title 42, but other Democrats such as Sens. Mark Kelly and Kyrsten Sinema of Arizona and Rep. Henry Cuellar (Tex.) said it should remain in place.

On Friday, Cuellar praised the ruling on Twitter.

“The judge’s decision to block the termination of Title 42 is great news for border communities,” he wrote. “I look forward to continuing this conversation as the pandemic progresses.”

Caroline Savoie contributed to this report.