Federal judge stops Biden from ending Title 42 border policy

A federal judge dealt a blow to the Biden administration Friday by halting its planned cessation Monday of a pandemic health policy allowing authorities to turn away unauthorized migrants at the southern border.

U.S. District Court Judge Robert Summerhays of the Western District of Louisiana on Friday afternoon blocked the U.S. government from ending the Title 42 policy, forcing U.S. border officials to continue turning most illegal migrants back to Mexico rather than taking them into custody.

The injunction was a response to a suit filed by the states of Arizona, Louisiana, and Missouri, claiming the government had failed to plan for handling the anticipated surge in noncitizens expected to cross when Title 42, promulgated by the Centers for Disease Control and Prevention, goes away and that the influx of releases would harm states. A total of 24 states are listed as plaintiffs.

Summerhays wrote in his decision that the states “established a substantial likelihood of success based on the CDC’s failure to comply with the rulemaking requirements” under federal law, justifying keeping the policy in place as the case works through the courts.

At the onset of the pandemic, the CDC recommended that U.S. border authorities expel people rather than take them into custody on the basis that it would slow the spread of the coronavirus. Since then, the United States has expelled 1.7 million people through the authority, including some multiple times. Those expelled did not face legal charges despite unlawful entry being a misdemeanor the first time and a felony thereafter.

The Trump administration enforced Title 42 to a greater extent than the Biden administration has. Under former President Donald Trump, virtually all illegal immigrants were expelled to Mexico or their home country.

But expulsions became more complicated in late 2020, when people from countries beyond Mexico and Central America began crossing the border at higher rates than had been seen in the Border Patrol’s 98-year history. Because the Mexican government refused to accept back migrants from countries beyond Central America, the U.S. was forced to take them into custody.

Because families cannot go through immigration removal proceedings in the 20 days in which they are legally permitted to be detained, they are released and told to show up for court years down the road. The immigration courts have approximately 1.5 million cases pending before roughly 500 judges nationwide.

Migrant releases only add to the backlog of cases, and the increase in releases over the past two years has further burdened the courts. The number of migrants encountered attempting to enter the U.S. without legal permission has risen under Title 42, from 17,000 in April 2020 to 234,000 last month. Republicans have overwhelmingly pushed to maintain the policy, saying that allowing the Border Patrol to turn people away immediately is necessary to prevent a worse crisis.

Karine Jean-Pierre, the White House press secretary, released a statement Friday evening saying the Biden administration disagrees with the court’s ruling and the Department of Justice would appeal the decision.

“The authority to set public health policy nationally should rest with the [CDC], not with a single district court,” she said.

Behind closed doors, the Biden administration has been concerned that walking back Title 42 could prompt a “mass migration event.”

Between 5,000 and 7,000 noncitizens have been encountered attempting to cross the border illegally each day over the past year. The Department of Homeland Security was specifically concerned that Mexican cartels would take advantage of the forthcoming change in border policy and attempt to push as many people into the country as possible. DHS had been planning for a worst-case scenario of 18,000 people per day in the six weeks following May 23, far beyond the 1,000 that the Obama administration had said would constitute a crisis.

Once Title 42 ends, people who are apprehended illegally crossing the border or deemed inadmissible for entry at the ports will face one of three options.

The government could use a process known as “expedited removal” to repatriate that person to their home country, though it is contingent on that person not claiming a fear of being returned. However, it’s not clear if the Mexican government will accept non-Mexicans. If the person claims asylum during the expedited removal process, they would undergo an initial asylum screening called a “credible fear” interview and be referred to immigration court if they pass.

Others will be referred directly to immigration court, and likely released into the U.S., pending the resolution of their case. Some could be held in U.S. Immigration and Customs Enforcement detention facilities, though the pandemic and the Biden administration’s aversion to detaining people for civil offenses makes detention far less likely.

Finally, some migrants may be returned to Mexico under a policy implemented during the Trump administration, the Migrant Protection Protocols. Known informally as the “Remain in Mexico” policy, it forces asylum-seekers to go back to Mexico for weeks to months while they wait to appear in court rather than releasing them into the U.S. The Biden administration unsuccessfully tried to end the policy last year, but the Supreme Court ordered it be reinstated.