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Migrants in Tijuana gather for a protest to end Title 42 on May 22. Photo: Guillermo Arias/AFP via Getty Images.
Migrants in Tijuana gather for a protest to end Title 42 on May 22. Photo: Guillermo Arias/AFP via Getty Images.

Judge keeps Title 42 public health order in place, now as an immigration deterrent

A Louisiana judge said the Biden administration could not end the Trump era protocol that allowed for the fast expulsion of migrants amid the pandemic.

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Title 42, the controversial emergency public health order which has successfully expelled migrants at the U.S.-Mexico border for the last two years, is going to stay put — for now. 

The order, launched by the Trump administration at the start of the COVID-19 pandemic, has continued throughout Biden’s presidency, despite his administration’s intentions and efforts to end it. 

Early last month, Department of Homeland Security (DHS) secretary Alejandro Mayorkas announced that Title 42 would be over on May 23.

But on Friday, May 20, a Louisiana federal judge blocked the Biden administration from doing so. District Judge Robert R. Summerhays, who was appointed by Trump, ruled that the Biden administration violated administrative law in April when it announced its plan to end its use of the policy.

A  legal battle is already underway. The U.S. Department of Justice (DOJ) quickly filed an appeal on Friday with the 5th U.S Circuit of Appeals, saying it believes the Biden administration’s decision was perfectly legal.

In his ruling, Summerhays stated that the Biden administration’s choice to lift Title 42 would result in “irreparable harm,” as states would need to invest money into law enforcement, healthcare, education, and other services for incoming migrants. 

In a statement, DHS clarified that Title 42 is a public health order and was never intended to be used as an immigration control tactic. But it did say it will “comply with the court’s order” to continue enforcing the CDC’s order as long as it remains in place.

The latest Title 42 update has garnered mixed reactions from legal experts, politicians and advocates. 

Ken Paxton, Texas Attorney General, who has filed nearly a dozen immigration-related lawsuits against the Biden administration, applauded Summerhays’ ruling in a Twitter post. 

“I am glad for our state and our nation that it will remain in place,” Paxton said. 

Tami Goodlette, director of the Texas-based Refugee and Immigrant Center for Education and Legal Services, condemned Summerhays’ ruling, and Biden, for not immediately lifting the policy when he took office in January 2020. 

“Title 42 was never about public health, but rather is shrouded in racism, as doctors and public health experts have made clear that immigration is not a source of pandemic spread. Now, President Biden must keep his promise to undo Trump’s anti-immigrant policies,” Goodlette said.

In March 2020, the Trump administration invoked Title 42, effectively closing the borders to migrants, including asylum-seekers, unless they already had legal permission to enter. 

At the time, Trump said the Centers for Disease Control had to invoke the rarely used health order because “our nation’s top healthcare officials are concerned about the great public health consequences of mass, uncontrolled cross-border movement.”

Since then, immigration officials have used to order nearly 2 million times to expel migrants, many of whom were removed on more than one occasion. Since these removals began, the recidivism rate, or the percentage of migrants apprehended more than once by border officials, has increased from 7% to 27%. 

The nation’s top virus expert, Dr. Anthony Fauci, said that immigrants are not responsible for any increases in COVID-19 infections. As the pandemic has continued, Title 42 has been subtly transformed from a public health order to an immigration policy. 

The New York-based organization, Human Rights First, has identified nearly 10,000 cases of kidnapping, torture, sexual abuse, and other violent attacks on people expelled to Mexico under the policy, as of March 15, 2022.  

On Friday, DOJ spokesperson Anthony Coley said that the agency intends to appeal the decision. 

"The CDC invoked its authority under Title 42 due to the unprecedented public-health dangers caused by the COVID-19 pandemic. CDC has now determined, in its expert opinion, that continued reliance on this authority is no longer warranted in light of the current public-health circumstances,” Coley said in a statement.

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