A version of this story was first published in April.
A federal judge’s order blocking Title 42 raises many questions. But there’s no doubt the ruling has major implications for the Biden administration’s border strategy.
US District Judge Emmet Sullivan’s Tuesday decision requires officials to end a controversial Trump-era policy – something that officials predicted earlier this year would lead to a new influx of migrants trying to cross into the United States.
The Biden administration had criticized and vowed to end the use of Title 42 at the border, but more recently came to rely on the policy.
Border authorities used the public health restrictions to expel migrants nearly 2.5 million times in less than three years. And just last month officials announced they were expanding the policy.
Now, after another ruling from the judge Wednesday, they have just over a month before they’ll have to end it.
Here’s a look at some of the key questions and answers about Title 42’s history, the judge’s ruling, what’s happening on the ground and what could happen next.
In the early days of the coronavirus pandemic, the US Centers for Disease Control and Prevention issued a public health order that officials said aimed to stop the spread of Covid-19. The order allowed authorities to swiftly expel migrants at US land borders. The policy is widely known as Title 42, for the portion of US code that allowed the CDC director to issue it.
The border restrictions were controversial from the moment the Trump administration announced them. Immigrant rights advocates argued officials were using public health as a pretext to keep as many immigrants out of the country as possible. Public health experts also slammed the policy, saying it wasn’t justified by the circumstances.
In April, the policy became a political lightning rod and a topic of fierce debate as the Biden administration announced plans to end it. But ultimately, the policy remained in place after a federal judge in Louisiana blocked the administration’s plans to roll it back.
And the national political conversation moved on to other targets. Immigration and border enforcement remained big points of contention, and a major theme that many Republicans emphasized in midterm election campaigns. But Title 42 was no longer the focus of debate.
Sullivan’s ruling places the issue front and center once again, and raises major questions about what will happen next at the border.
Sullivan, a federal judge in the District of Columbia, found the Title 42 order to be “arbitrary and capricious in violation of the Administrative Procedure Act.” That act governs the process by which federal agencies develop and issue regulations.
He faulted the CDC for “its decision to ignore the harm that could be caused” by issuing the policy, and said the CDC had failed to consider alternative approaches. Sullivan also concluded that the policy did not rationally serve its purpose, given that Covid-19 was already widespread throughout the United States when it was rolled out.
The bottom line: Based on Sullivan’s ruling, the government can’t use the coronavirus pandemic as a justification to expel migrants anymore, and it never should have in the first place.
Yes, and officials have indicated they will. But they asked the court for a five-week reprieve – a request the judge said he was granting Wednesday with “GREAT RELUCTANCE.”
Sullivan’s ruling striking down Title 42 will be on hold until December 21.
“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,” the Department of Homeland Security said in a statement.
Migrants encountered under Title 42 are either expelled to their home countries or into Mexico. Under Title 42, authorities have expelled migrants at the US-Mexico border nearly 2.5 million times in less than three years, according to US Customs and Border Protection data. And the vast majority of those expulsions – more than 80% – have occurred under the Biden administration.
But migrants haven’t stopped trying to cross the US-Mexico border – a detail people on both sides of the debate have pointed to, with very different arguments about what it shows.
Those who support Title 42 point to border arrests as they argue how essential the pandemic policy has been for blocking illegal immigration. Those who oppose the policy argue official statistics about encounters at the border inflate the severity of the situation, because the data include people crossing the border multiple times. They argue Title 42 has actually caused more border crossings.
If the order is lifted, the way migrants are processed at the border would go back to how it was before 2020. Under that system, migrants are either removed from the country, detained or released into the US while their cases make their way through immigration court.
Officials earlier this year said they expected lifting Title 42 would prompt a new influx of migrants trying to cross into the United States. At the time, they said they were preparing for different outcomes, including a worst-case-scenario possibility that up to 18,000 migrants a day could try to cross the border.
The number of migrants at the border can fluctuate seasonally, and the administration hasn’t released updated estimates since Sullivan’s ruling or revealed what new policies they plan to implement. But the Department of Homeland Security stressed in its statement Tuesday evening that even though Title 42’s days are numbered, it will remain in place “for some period.”
And officials seemed to allude to the possibility that the court ruling could become fodder for smugglers trying to convince migrants to make the dangerous journey to the US.
“We know that smugglers will lie to take advantage of vulnerable migrants, putting lives at risk,” the DHS said.
Earlier this year, the policy drew attention when authorities at first were using it to turn away Ukrainians at the border, then largely started granting exceptions that allowed thousands of Ukrainians seeking refuge to cross.
Advocates argued a racist double standard was at play as many migrants from Central America and Haiti continued to be turned back under the policy. Federal officials denied that accusation and said each exemption is granted on a case-by-case basis.
In August, a CNN analysis found that migrants from outside Mexico and the Northern Triangle countries of Guatemala, Honduras and El Salvador were far less likely to be subjected to Title 42.
But for some migrants, that’s starting to change. Nearly 6,000 Venezuelan migrants were expelled under Title 42 in October after the Biden administration announced a new policy toward migrants from the South American nation.
Advocates say for many of those who are expelled, the situation is dire.
Since Biden took office, Human Rights First says it’s identified nearly 10,000 cases of kidnapping, torture, rape or other violent attacks on people blocked or expelled to Mexico under Title 42.
Lee Gelernt, the American Civil Liberties Union attorney who argued the case before Sullivan, praised the ruling.
“Title 42 was never about public health, and this ruling finally ends the charade of using Title 42 to bar desperate asylum seekers from even getting a hearing,” he said in a statement.
Immigrant advocacy organizations and some Democratic lawmakers echoed those sentiments and called for the administration to swiftly dismantle the policy.
“Asylum is a human right. Title 42 was a cruel, inhumane policy,” Rep. Jesus “Chuy” Garcia, D-Illinois, said on Twitter.
Texas Gov. Greg Abbott and other Republicans were swift to condemn the judge’s decision.
“This will further signal to cartels, human smugglers, & illegal immigrants that the border is wide open—inciting more violence & lawlessness. Disastrous,” Abbott wrote on Twitter.
The Biden administration has sent mixed messages on Title 42, but lately had seemed more favorable towards the policy. Officials have been using Title 42 to try to change the conversation around the border and the situation on the ground.
Many advocates expected President Biden would lift the order as soon as he took office, given his campaign promises to build a more humane immigration system. Instead, his administration extended the policy more than a year into his presidency and defended it for months in court.
In April 2022, the administration announced plans to end the policy, stating that it was no longer necessary given “current public health conditions and an increased availability of tools to fight Covid-19.”
After the federal judge in Louisiana blocked that effort, the Justice Department vowed to appeal.
But months later, facing mounting political pressure over a marked increase in migrants crossing the border the administration announced in October that it was expanding the use of Title 42 to expel Venezuelans into Mexico.
Just hours before Sullivan’s ruling, Homeland Security Secretary Alejandro Mayorkas told lawmakers the policy remained in place.
Months ago we heard officials allude to the plans they had for managing migration at the border once Title 42 was lifted. Now the judge’s ruling forces the Biden administration’s hand.
Without Title 42 at its disposal, it’s unclear what new steps the administration will take at the border. Whatever happens next is sure to face intense political scrutiny.
Already the judge’s decision is intensifying debate over the border once again.