A federal court in Louisiana issued an order on Wednesday temporarily preventing the Biden administration from winding down Title 42, the controversial public health policy that allows immigration officials to rapidly expel asylum seekers and migrants from the border. The order is in effect for the next 14 days, with a hearing set for May 13 to determine the potential fate of Title 42.
The lawsuit at issue was filed earlier this month by 21 Republican-led states, including Arizona, Louisiana, and Missouri. The states allege that the Biden administration did not follow the proper regulatory procedures when it moved to terminate Title 42 and the termination harms the states’ interests.
Title 42 has been in effect since March 2020, when the Trump administration enacted it under the guise of COVID-19 safety. Since then, Customs and Border Protection (CBP) has conducted over 1.7 million expulsions of asylum seekers and migrants under Title 42. Advocates, public health experts, and lawmakers have long called on the Biden administration to end Title 42, citing its lack of effectiveness in preventing the spread of COVID-19 and the enormous human rights toll it has taken on asylum seekers who have been blocked from seeking protection in the United States. A recent report tracked over 10,250 violent attacks, including murder, rape, and torture, against migrants who were expelled from the U.S. under Title 42 since President Biden took office.
The Centers for Disease Control and Prevention (CDC) announced earlier this month that it would end Title 42 on May 23. Since then, the administration has been taking steps to prepare for restored migrant processing at the border, largely by increasing the use of expedited removal for single adults from the Northern Triangle countries of El Salvador, Guatemala, and Honduras.
District Judge Robert R. Summerhays, a Trump appointee, issued the temporary restraining order halting the wind down of Title 42 two days after indicating he would rule in favor of the states’ request for temporary relief. The order, which applies nationwide, requires the Department of Homeland Security (DHS) to cease implementation of the CDC’s Title 42 termination order for the next 14 days.
Judge Summerhays’ order prevents DHS from increasing regular migrant processing under Title 8 and requires it to maintain pre-termination order levels of Title 42 expulsions. The order allows DHS to continue to use its discretion to grant case by case exceptions to Title 42, which are typically granted based on humanitarian concerns.
DHS must submit weekly status reports to the court with data on the number of migrants processed and expelled to show compliance with the court’s order. If the states conclude based on this data that DHS has “used expedited removal . . . to a greater degree than they believe is appropriate,” the parties must confer and DHS may be required to lower its processing levels.
Notably, because the order is only in effect for the next 14 days, it does not block the Biden administration from terminating Title 42 on May 23. The court will have to decide that question after the May 13 hearing.
Though it remains to be seen how Judge Summerhays will rule after the May 13 hearing, it seems likely, based on this initial order, that he will find in favor of the states and block the administration from ending Title 42 on May 23. Such a ruling could frustrate the long-awaited end to an inhumane policy that has prevented thousands of asylum seekers from seeking protection in the United States.