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Federal judge strikes down Trump-era border policy known as Title 42

Venezuelan migrants, some expelled from the United States to Mexico under Title 42, stand on the banks of the Rio Bravo river, in Ciudad Juárez, Mexico, on Oct. 30. (Jose Luis Gonzalez/Reuters)

A federal judge on Tuesday struck down a Donald Trump-era policy used by U.S. border officials to quickly expel migrants because of the covid pandemic, saying the ban had little proven benefit to public health even as it shunted migrants to dangerous places.

U.S. District Judge Emmet G. Sullivan in the District of Columbia vacated the order known as Title 42, effectively restoring asylum seekers’ access to the borders for the first time since the Trump administration issued it during the earliest days of the pandemic.

The decision — which as of Wednesday was expected to become effective Dec. 21 — knocks down one of the last remaining barriers to asylum from the Trump administration, advocates for immigrants said. It also poses an immediate logistical challenge for the Biden administration after two consecutive years of record apprehensions on the U.S.-Mexico border, with the possibility that the numbers could grow.

Biden officials have long worried about a mass rush to the border creating an emergency similar to the one that occurred in Del Rio, Tex., in September 2021, when thousands of migrants crossed illegally and overwhelmed U.S. agents, creating a squalid camp on the banks of the Rio Grande that embarrassed the Biden administration.

Sullivan’s ruling also comes days after top border official Chris Magnus resigned under pressure after clashing with Homeland Security Secretary Alejandro Mayorkas.

The American Civil Liberties Union, one of the organizations that brought the lawsuit on behalf of migrants, said Sullivan’s decision to vacate the Title 42 policy means the policy ends for all migrants, including families and adults traveling without children.

“Title 42 unfortunately had a long shelf life but has finally been ended, and that will mean enormous relief to desperate asylum seekers,” said ACLU lawyer Lee Gelernt.

Sullivan initially said he wouldn’t delay his order but the government asked for more time Tuesday to prepare and the ACLU and other organizations did not oppose the request. Officials plan to send more resources to the border and coordinate with local aid groups and governments.

Sullivan granted a temporary stay Wednesday morning, saying in all capital letters that he did so “WITH GREAT RELUCTANCE.”

“The delay in implementation of the court’s order will allow the government to prepare for an orderly transition to new policies at the border,” the Department of Homeland Security said in a statement.

Federal officers made more than 230,600 arrests in October alone at the U.S.-Mexico border, and expelled more than 78,400 without providing a chance for them to plead their cases.

U.S. officials have carried out more than 2.4 million expulsions, mainly from the southern border, since the previous administration issued the order in March 2020. Most expulsions have been under President Biden because the number of arriving migrants has soared.

In his ruling, Sullivan sided with migrants who sued the government last year arguing that the Centers for Disease Control and Prevention’s Title 42 order was “arbitrary and capricious” in violation of federal law. Advocates said there was no evidence the policy protected public health and that the government had failed to consider alternatives that might have prevented migrants from being expelled into countries where they faced extreme danger.

Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.

“It 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,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”

The Biden administration could appeal, but lawyers said that is unlikely because the CDC agreed in April that the Title 42 order was unnecessary because of lower covid transmission and the availability of masks and vaccines, and tried to lift the order in May.

A federal judge in Louisiana blocked the Biden administration temporarily after Republicans in Texas and 23 other states sued, saying officials had failed to consider the impact that absorbing new migrants would have on their budgets.

U.S. District Judge Robert Summerhays, a Trump appointee, said the Biden administration could terminate the Title 42 order after allowing the public to weigh in, but the CDC has not started that process and declined to say why.

Sullivan’s ruling makes that lawsuit moot by declaring that the CDC never should have issued the Title 42 order at all.

U.S. arrests along Mexico border top 2 million a year for first time

Sullivan, a Clinton appointee, has issued rulings temporarily blocking the government from expelling migrant families and unaccompanied minors, though appeals courts partly overturned him as the cases made their way through the courts. The Biden administration stopped expelling unaccompanied minors, but it has returned more than 1.5 million other migrants.

Sullivan’s ruling Tuesday stemmed from a case filed by migrant families, but the judge’s decision to vacate the order means that it extends to all migrants, including adults traveling solo, the biggest group taken into custody at the border last year.

Sullivan’s ruling follows an October House report that said the Trump White House “brazenly interfered” with the CDC to achieve its political goals. Officials “exploited CDC’s Title 42 authority to effectively close the southern border under the guise of mitigating spread of the virus,” the report said.

Away from the border, the former president downplayed the virus as it rampaged across the country, killing more than 1 million people and becoming the third-leading cause of death.

After Biden was elected, advocates for immigrants attempted to negotiate an end to the policy.

The Biden administration resisted as mass migration soared, prompting the American Civil Liberties Union and other advocacy groups representing the migrants to return to federal court to compel the government to end the policy.

In his ruling, Sullivan noted that the government never proved its claims that there was a risk of migrants introducing covid into the United States. During the first seven months of the Title 42 policy, he wrote, Customs and Border Protection found an average of one migrant a day who tested positive.

When the Biden administration extended the order in August 2021, he said, the rate of daily cases in the United States was almost double that of Mexico.

Sullivan wrote that Title 42 also was not an effective border control measure, and instead served to boot migrants into countries where they could easily try again, and recidivism soared.

Shutting the border to asylum seekers also made little sense to many observers considering that millions of travelers — far more than those arriving at the border — were coming to the United States through legal pathways, in airplanes, trains, buses and in cars.

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Some Democrats also clung to the Title 42 policy as border apprehensions soared. Some lawmakers proposed a bipartisan bill that would delay ending the expulsions.

Biden promised during his campaign to restore access to asylum — and he has rolled back a number of Trump immigration restrictions, expanding the refugee system and attempting to shield migrants from being deported. Biden also said he wanted an orderly system that would “make it better, not worse.”

“The last thing we need is to say we’re going to stop immediately, the access to asylum, the way it’s being run now, and end up with 2 million people on our border,” Biden said in December 2020 before he took office.

The Department of Homeland Security has said it plans to process migrants’ cases quickly, granting protection to those who deserve it and deporting migrants who are ineligible for asylum. Anyone who attempts to reenter the United States after being deported could face felony criminal charges and prison time, a consequence that does not apply to those who are expelled.

In the past, however, the influx has led the department to release large numbers of migrants, overwhelming border cities and towns, as they await an immigration court hearing that could take months or years to materialize. Republican governors in states such as Texas have been so frustrated by the influx that they have bused migrants to northern cities to compel them to care for the new arrivals.

Federal immigration law allows anyone who sets foot on U.S. soil to request asylum, though they must meet specific criteria to qualify. Asylum seekers must fear persecution or torture in their country because of their race, religion, nationality, political opinion or other reasons that make them a target.

Border officials apprehended more than 2.3 million migrants last fiscal year along the Mexico border. More than 1.6 million were adults, 560,600 were families and 152,000 were unaccompanied minors, an all-time high for that group.

Nick Miroff contributed to this report.

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