Court gives Biden until December to wind down Title 42 blocking asylum seekers

The government has until Dec. 21 to wind down its use of Title 42, with a federal judge granting a request from the Biden administration “with great reluctance” after striking down the policy blocking asylum-seekers.

U.S. District Judge Emmet Sullivan on Tuesday vacated the policy that allows for swift expulsion of migrants without letting them seek asylum, pushing them into Mexico or returning them to their home country.

Sullivan found the policy, crafted under the Trump administration in the earliest days of the coronavirus pandemic, to be arbitrary and capricious and said it violated standards of the Administrative Procedures Act (APA) because the Centers for Disease Control and Prevention (CDC) “failed to adequately consider alternatives and the policy did not rationally serve its stated purpose.”

The judge also noted the CDC’s “decision to ignore the harm” caused by the policy likewise violated the APA.

“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, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor,” Sullivan wrote, noting warnings that migrants often face persecution and violence once expelled.

The Biden administration appealed to the judge late Tuesday to stay the ruling by five weeks, arguing they would need more time to transition to normal processing under Title 8.

The Department of Homeland Security (DHS) “will need to move additional resources to the border and coordinate with stakeholders, including non-governmental organizations and state and local governments, to help prepare for the transition to Title 8 processing,” the Justice Department wrote in its filing.

“This transition period is critical to ensuring that DHS can continue to carry out its mission to secure the Nation’s borders and to conduct its border operations in an orderly fashion.”

“While the stay is in effect, DHS will continue to process individuals in accordance with the CDC’s Title 42 public health order and expel single adults and family units encountered at the Southwest Border,” they said in a statement.

“People should not listen to the lies by smugglers who will take advantage of vulnerable migrants, putting lives at risk. The border is closed, and we will continue to fully enforce our immigration laws at the border.”

Sullivan’s ruling came a month after the Biden administration moved to expand Title 42 to Venezuelans.

The end of Title 42 is already being celebrated by immigrant advocates, but the sudden end to a key component of the administration’s border enforcement toolkit could enhance the perception of chaos at the border, even though it is largely credited with exacerbating recidivism from border crossers. The policy offers no penalty for those who cross again.

Title 42 was marketed as a pandemic response policy, but most observers deemed it a transparent attempt to use the pandemic as an excuse to gut asylum.

In his ruling, Sullivan agreed with the critics who questioned Title 42’s public health bona fides.

“The Court is not convinced that the Title 42 orders do not fall into the category of a ‘quarantine, isolation, or 22 other public health measures,’ as contemplated by the 2017 Final Rule,” wrote Sullivan.

Updated 1:11 p.m.