Judge says CDC can’t end the Title 42 rule that allows for quick expulsion of migrants

The Centers for Disease Control and Prevention (CDC) cannot move forward with a plan to discontinue pandemic-related emergency rules that allow U.S. border agents to rapidly expel migrants to Mexico or their home countries on public health grounds, a federal judge in Louisiana ruled Friday.

Judge Robert Summerhays of the U.S. District Court in Lafayette, Louisiana, issued a preliminary injunction blocking the Biden administration from ending the restrictions, known as Title 42, on May 23, when the CDC had planned to stop authorizing the border expulsions.

Agreeing with arguments presented by Republican attorneys general who sued the Biden administration, Summerhays, an appointee of former President Donald Trump, said the CDC had improperly terminated Title 42, a public health authority enacted during World War II. 

In the 47-page ruling, Summerhays said the CDC should have allowed the public to comment on Title 42’s termination before finalizing it. “Simply put, the CDC has not explained how the present circumstances prevented the CDC from issuing the Termination Order through the required notice and comment process,” he wrote.

Before his ruling on Friday, Summerhays had already issued a temporary restraining order barring the U.S. Department of Homeland Security (DHS) from starting to phase out Title 42 before the May 23 termination date.

Since March 2020, migrants have been expelled more than 1.9 million times from the U.S.-Mexico border under Title 42, which denies them an opportunity to request asylum, a right guaranteed by U.S. law and international refugee treaty, government figures show.

The Trump administration argued that Title 42 allows the U.S. to suspend these legal humanitarian obligations during a global pandemic, saying the expulsions of migrants and asylum-seekers were necessary to control the spread of COVID-19 inside border facilities.

The Biden administration employed the same argument for over a year, using Title 42 longer and more often than the Trump administration, carrying out over 1.4 million migrant expulsions, according to an analysis of U.S. Custom and Border Protection (CBP) data.

But in early April, CDC Director Rochelle Walensky said the expulsions were no longer necessary to curb the spread of the coronavirus because of improving pandemic conditions, including higher vaccination rates in the U.S. and Latin America.

Migrant Gladys Martinez offers paperwork to a US Border Patrol agent upon arrival at the US-Mexico border wall separating Algodones, Mexico, from Yuma, Arizona, on May 16, 2022

FREDERIC J. BROWN/AFP via Getty Images

Friday’s ruling is a victory for more than 20 states led by Republican attorneys general in Arizona, Louisiana and Missouri who filed the lawsuit challenging the CDC’s decision to terminate Title 42.

The coalition of states argued that an expected increase in the number of migrants being released from U.S. border custody upon Title 42 being halted would harm them financially, citing educational and other social services costs.

While many Democrats and progressive activists praised the decision to end Title 42, the move sparked concern among centrist Democrats, some of whom have joined Republicans in backing a congressional proposal that would require the CDC to continue the expulsions until the national emergency over COVID-19 is lifted.

Apprehensions of migrants along the U.S. southern border have reached record levels over the past year, fueled in part by soaring rates of repeat crossing attempts by some adult migrants trying to reenter the U.S. after being expelled to Mexico under Title 42.

U.S. border agents have stopped migrants 1.3 million times in fiscal year 2022, which started in October, putting that tally on track to exceed the record 1.7 million migrant apprehensions reported in fiscal year 2021, CBP data show.

During an interview with CBS News earlier this week, DHS Secretary Alejandro Mayorkas said the Title 42 expulsions have led some migrants to cross the border  “over and over again” because they do not carry the same penalties, such as multi-year banishments from the U.S., as traditional deportations.

Mayorkas said the “historic numbers” of unlawful crossings along the U.S.-Mexico border could be reduced through criminal prosecutions of repeat crossers, expedited deportations of migrants who do not ask or do not qualify for U.S. humanitarian protection and a rule to speed up asylum case processing.

“We have a number of different efforts underway to ensure that people do not take the dangerous journey, do not place their lives in the hands of exploiting smugglers,” Mayorkas said during his visit to McAllen, Texas, on Tuesday.

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