Update, December 28: On Tuesday, the Supreme Court ruled that Title 42 must stay in place, for now.
In another setback for immigrant rights groups, a Trump-era border policy that summarily expels migrants and asylum seekers has been given an afterlife. On Monday, Chief Justice John Roberts granted a request by 19 Republican attorneys general to block a lower court’s ruling that ordered the Biden administration to lift the border restrictions known as Title 42 by December 21. This action allowed the policy to remain in place pending a response from the government and until further order from the highest court.
The Republican states argue that rescinding Title 42 “will cause a crisis of unprecedented proportions at the border.” Since its implementation in March 2020, both the Trump and the Biden administrations have relied on the pandemic-related public health order as justification to turn away migrants arriving at the US-Mexico border. The policy has resulted in almost 2.5 million expulsions.
But for years now, public health and immigration experts have condemned the use of Title 42 for violating asylum seekers’ rights to seek protection. When the Trump administration initially floated the policy, an authority with the Centers for Disease Control and Prevention (CDC) opposed using the order to close the border as “morally wrong” and said it was intended “to keep Hispanics out of the country.” The misguided measure that seals the border has also created dangerous conditions for migrants, forcing them to attempt multiple crossings. As our previous reporting has shown, Title 42 has increased the risk of injuries and deaths along the border.
In April, the CDC determined that keeping Title 42 in place was no longer necessary. The Biden administration then announced it would rescind the policy in May, but Republican-led states have sued to prevent its termination. Groups like the American Civil Liberties Union (ACLU) meanwhile have also challenged the government and in November, US District Court Judge Emmet Sullivan sided with them arguing the use of Title 42 to expel migrants was “arbitrary and capricious.” He set the deadline of December 21 for the Biden administration to lift Title 42.
In anticipation of the expiration of Title 42, DHS has been considering putting in place new asylum restrictions to manage the border. The plans reportedly on the table have raised concerns among immigrant advocates that Trump-era policies conceived by Stephen Miller could be revived. One of these is a transit ban that would reject asylum claims from people who couldn’t prove they first sought protection in other countries prior to arriving at the US-Mexico border.
“As required by the Supreme Court’s administrative stay order, the Title 42 public health order will remain in effect at this time, and individuals who attempt to enter the United States unlawfully will continue to be expelled to Mexico,” says a Department of Homeland Security (DHS) statement in response to Chief Justice Roberts’ order. “While this stage of the litigation proceeds, we will continue our preparations to manage the border in a safe, orderly, and humane way when the Title 42 public health order lifts.”