WASHINGTON — A federal judge ruled Tuesday that the U.S. government can no longer use a Covid-era policy that allowed authorities to severely limit asylum-seekers from crossing the border into the country.
U.S. District Judge Emmet Sullivan vacated the controversial rule, known as Title 42, which U.S. Customs and Border Protection has used to turn back migrants at the border before they could make asylum claims.
Since the Trump administration implemented the rule in March 2020 because of the Covid pandemic, the federal agency has turned people back 2 million times. In May, a federal judge in Louisiana blocked the Biden administration's attempt to end the policy.
Sullivan said the rule violates the Administrative Procedures Act and argued that it’s “arbitrary and capricious.” His ruling stemmed from a lawsuit brought by a group of asylum-seeking families who fled to the U.S.
The Biden administration won’t oppose Sullivan’s order, according to a court filing Tuesday night, but requested a temporary delay in lifting Title 42.
The Department of Homeland Security, through lawyers at the Justice Department, said it was requesting five weeks “to prepare to transition” to processing all migrants under pre-Covid policies, meaning they can cross the southern border to claim asylum.
"To be clear...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," DHS said in a statement Tuesday night.
Sullivan granted the administration’s request for a five-week stay with great reluctance,” as he wrote in his court order. The delay means Title 42 will come to an end on Dec. 20, taking effect on midnight Dec. 21.
Lee Gelernt of the American Civil Liberties Union, one of the lead attorneys in the case, said Tuesday that “Title 42 was a misuse of the public health laws from the beginning and has cause great harm to tens of thousands of desperate asylum-seekers.”
“The practical significance of the ruling cannot be overstated,” he said.
He added that Sullivan's ruling essentially overrides the Louisiana court’s decision to stop the Biden administration from ending Title 42.
In April, Homeland Security Secretary Alejandro Mayorkas formally announced that the agency would end Title 42 on May 23 and allow families and single adult asylum-seekers who had been turned away at the border to enter the U.S. At the time, thousands of migrants were living in poor conditions and camps in northern Mexico after having been turned back from crossing.
But before the Biden administration lifted the rule, U.S. District Judge Robert Summerhays of Western Louisiana issued a preliminary injunction, blocking officials from ending it.
A separate court order May 24 in Washington, D.C., restored the ability of migrant families to cite fear of persecution and torture as a path toward seeking protections in the U.S.
The conflicting orders prompted Mayorkas to say: “The restrictions at our Southwest border have not changed. Single adults and families encountered will continue to be expelled, where appropriate, under Title 42.”
The Biden administration has faced criticism from both parties for its handling of Title 42. Republicans have widely opposed ending the policy, and several centrist Democrats have questioned whether the administration is ready for the predicted increase in the number of asylum-seekers.
