US judge gives Biden administration five weeks to end Title 42

The judge earlier said ‘arbitrary and capricious’ border expulsion policy was unlawful in a ruling welcomed by rights groups.

Venezuelan refugees and asylum seekers pray at US-Mexico border
Venezuelan migrants and refugees pray after a US judge declared Title 42 was unlawful, at a camp in Ciudad Juarez, Mexico, November 15, 2022 [Jose Luis Gonzalez/Reuters]

A judge in the United States has given President Joe Biden’s administration five weeks to end a contentious policy that allowed authorities to expel hundreds of thousands of asylum seekers arriving at the southern border with Mexico.

The administration had filed an unopposed motion requesting the delay late on Tuesday, just hours after US District Court Judge Emmet Sullivan in a 49-page decision said Title 42 was an “arbitrary and capricious” policy that violated federal regulatory law.

“This transition period is critical to ensuring that [the Department of Homeland Security, DHS] can continue to carry out its mission to secure the Nation’s borders and to conduct its border operations in an orderly fashion,” government lawyers wrote in their motion.

In a separate statement, DHS said it needed five weeks to “prepare for an orderly transition” at the border. “The United States will continue to fully enforce our immigration laws at our border,” the department said.

On Wednesday morning, Sullivan said he was granting the administration’s request with “GREAT RELUCTANCE”. He added that his order halting the border expulsion policy will take effect at midnight on December 21.

Human rights advocates had welcomed the judge’s decision on Title 42, which has been widely criticised as a violation of international and US laws that puts asylum seekers and refugees in danger.

More than 2.4 million Title 42 expulsions have been carried out at the US-Mexico border since the policy was first put in place under former President Donald Trump in March 2020 amid the COVID-19 pandemic, according to US government data. Many of those expelled were repeat crossers.

The Trump administration had argued Title 42 was necessary to prevent the spread of the virus, but experts said it was a pretext to further the ex-Republican president’s hardline, anti-immigration policies.

The order allowed US border authorities to rapidly turn away most asylum seekers without giving them a chance to apply for protection.

Lee Gelernt, a lawyer with the American Civil Liberties Union (ACLU) who led the Title 42 challenge, welcomed the judge’s decision as “a huge victory and one that literally has life-and-death stakes”.

“We have said all along that using Title 42 against asylum seekers was inhumane and driven purely by politics. Hopefully this ruling will end this horrific policy once and for all,” Gelernt said in a statement on Tuesday.

While the US Centers for Disease Control and Prevention (CDC) first issued the Title 42 order, the public health agency said in April that it was no longer needed to stop the spread of COVID-19. The Biden administration then said it planned to rescind the policy a month later.

But a Louisiana-based federal judge ruled in May that the Biden administration could not do that after two dozen US states sued. They argued proper consideration had not been given to a potential increase in border arrivals should Title 42 be lifted.

The ban has been unevenly enforced by nationality, falling largely on migrants from Guatemala, Honduras and El Salvador — in addition to Mexicans — because Mexico allows them to be returned from the US.

Last month, the Biden administration expanded Title 42 to Venezuelans after Mexico agreed to take them back at the border under Title 42, drawing concern and fears that a new crisis was brewing.

In his ruling on Tuesday, Sullivan said authorities failed to consider the effect on asylum seekers and possible alternatives.

Officials knew the implementation of the order would likely lead to people being expelled to places with a “high probability” of “persecution, torture, violent assaults, or rape”, he wrote.

Diana Kearney, senior legal adviser at Oxfam America, said in a statement that the judge’s decision “ends a racist and illegal policy that sacrificed the lives of vulnerable children, women, and men at the political altar”.

“While nothing can undo the incredible violence that millions of refugees have endured at the hands of these cruel and misguided policies, we welcome the renewed opportunity for the United States to offer asylum to refugees and restore respect for the rule of law,” Kearney said.

Source: Al Jazeera and news agencies