Federal judge halts the rapid removal of migrants under pandemic-era policy

(WASHINGTON) — A federal judge on Tuesday struck down a Trump-era policy of rapidly expelling migrants from the border in the name of pandemic health precautions.

The order relied on a decades-old public health law known as Title 42 and was implemented by Donald Trump’s administration at the start of the COVID-19 pandemic.

Authorities at the southern border have carried out more than 2.2 million Title 42 expulsions since it began.

Earlier this year, the Centers for Disease Control and Prevention under President Joe Biden attempted to pull back the order, but it was held in place by a legal challenge from Republican-led states. That case was rendered moot by Tuesday’s ruling, which takes issue with the original basis for conducting the expulsions.

U.S. District Judge Emmet Sullivan ruled that the impact on public health was minimal, noting millions of people have crossed the land border since the Title 42 removals were first implemented in 2020.

Sullivan also wrote that the policy was “arbitrary and capricious” and violated federal law.

The CDC should not have ignored the consequences of sending migrants back to potential harm, Sullivan wrote.

“It is undisputed that the impact on migrants was indeed dire,” he wrote.

“The ruling hopefully puts an end to one of the most draconian asylum policies this country has ever enacted,” American Civil Liberties Union’s Lee Gelernt, lead attorney on the case, said Tuesday.

Immigrant advocates have fought the Title 42 order from the beginning, underscoring the severe limitations it placed on the ability for migrants to apply for humanitarian protections including asylum.

Given the fast-track nature of the Title 42 removals, migrants had little to no opportunity to secure legal resources or find an attorney before they were sent back. Under U.S. law, non-citizens on U.S. soil have the right to seek humanitarian relief.

Sullivan, in his ruling, noted that as well, writing that “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.”

While the Biden administration has fought the policy in court as well, it has continued relying on Title 42 to expel migrants at the border — over a million this past budget year.

The Department of Homeland Security said earlier this year it was making preparations for the end of the Title 42 order including by adding personnel at the border, streamlining processing and continuing to enforce expedited removal for those ineligible for humanitarian protections.

In the wake of Sullivan’s ruling, the government asked the court for a five-week hold on its order to end Title 42 protocols to allow for a transition period before resuming standard immigration processing across the southwest border.

“[The Department of Homeland Security] requires a short period of time to prepare for the transition from Title 42 to Title 8 processing, given the need to resolve resource and logistical issues that it was unable to address in advance,” Department of Justice attorneys wrote.

DHS said in a statement, in part, that “the delay in implementation of the court’s order will allow the government to prepare for an orderly transition to new policies at the border. But to be clear, under the unopposed motion, Title 42 would remain in place for some period. During the period of this freeze, we will prepare for an orderly transition to new policies at the border.”

The administration recently secured agreement with the government of Mexico to start sending back Venezuelan migrants who have made up a growing share of those who attempt to cross into the U.S. without authorization.

Simultaneously, the administration opened up a new legal pathway for some Venezuelans with valid passports.

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