Federal judge blocks Title 42 policy that allowed officials to expel migrants at border

A federal judge on Tuesday barred U.S. border officials from rapidly expelling migrants under Title 42, a pandemic health policy that has been used to expel more than a million people. 

U.S. District Judge Emmet Sullivan in Washington, D.C., vacated the Trump-era policy that was instituted in March 2020 to mitigate the spread of COVID-19. Sullivan described Title 42 as "arbitrary and capricious” in violation of federal law in his ruling. 

The ruling takes effect immediately and applies to all migrants, including families and adults traveling without children, according to the American Civil Liberties Union, the organization that filed the lawsuit resulting in the decision. 

“This ruling is proof that Title 42 was never about public health — it was a thinly veiled racist smokescreen put in place by the previous administration and continued by the current administration,” Donna De La Cruz, director of communications for the Immigrant Legal Resource Center, said in a written statement.

“President (Joe) Biden must once and for all eliminate the use of Title 42 for asylum seekers.”

The Department of Homeland Security could not immediately be reached for comment.

Under the health policy, official ports of entry along the U.S.-Mexico border are mostly closed to asylum seekers, with few exceptions made through humanitarian parole. The policy has led to asylum seekers having to present themselves to Border Patrol agents between ports of entry.

Migrants and asylum seekers have decried Title 42, which has impeded their ability to seek asylum in the U.S. and forced them to wait for months in Mexican border communities, facing discrimination and dangerous conditions.

In his ruling, Sullivan acknowledged that officials knew Title 42 would likely “expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape.’” 

Sullivan wrote that the policy did not “rationally serve” its intended purpose because COVID-19 was already rampant in the U.S. Additionally, Sullivan stated that the Centers for Disease Control and Prevention failed to consider alternative approaches, including self-quarantine and outdoor processing. 

The ruling comes about a month after the Biden administration expanded the scope of the policy to include migrants from Venezuela, a population that had previously been excluded from being expelled under Title 42. In May, Biden tried to rescind the health policy, but a federal judge in Louisiana subsequently blocked the administration’s efforts, leaving the policy in place indefinitely.

The U.S. Border Patrol is unprepared to meet the increase in processing and placement burdens that are expected after Title 42 is rescinded and has no viable plans, according to a recent report from the U.S. Department of Homeland Security's Office of Inspector General.

The decision to block Title 42 comes two months after the end of fiscal year 2022, which ended in September, when total encounters along the U.S.-Mexico border surpassed 2 million for the first time in one year, per Customs and Border Protection data. 

Have a news tip or story idea about the border and its communities? Contact the reporter at josecastaneda@arizonarepublic.com or connect with him on Twitter @joseicastaneda.