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On Tuesday, a federal judge blocked the federal government from continuing to use an emergency health order, known as Title 42, to immediately deport migrants at the southern border after they enter the United States.
Judge Emmett Sullivan of the U.S. District Court in Washington, D.C., ruled that the Centers for Disease Control and Prevention’s use of Title 42 to prevent people from accessing the asylum process was “arbitrary and capricious” and a violation of the law as it has not been properly implemented.
“It is unreasonable for CDC to assume that it can ignore the consequences of any actions it decides to take in pursuit of its goals, particularly when those actions include the emergency decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor,” it wrote Sullivan in his opinion.
Sullivan said he would not stay his order pending an appeal, meaning the Biden administration must immediately stop using Title 42, even if it plans to take the case to a higher court. The administration tried to stop the repeal of Title 42 this year, but was blocked after a lawsuit by Republican-led states.
The Biden administration asked Sullivan to give immigration officials five weeks to comply with Sullivan’s order, according to a request filed by a lawyer with the U.S. Department of Justice on Tuesday evening.
Sullivan’s decision stems from a lawsuit filed by the American Civil Liberties Union in January 2021, which alleged that Title 42 violated US asylum laws and that the Trump administration used the pandemic as a pretext to invoke Title 42 and use it as a tool for immigration.
In March 2020, the CDC under the Trump administration invoked Title 42 for the first time since its creation in 1944 and said it was a necessary step to stop the spread of COVID-19 in immigration detention centers where housed many migrants after arriving at the US-Mexico border. Dr. Anthony Fauci, the nation’s top infectious disease expert, said immigrants are not increasing the number of COVID-19 cases.
Since then, immigration officials have used the health order more than 2 million times to deport migrants, many of whom have been repeatedly removed after repeated attempts to enter the US. Under Title 42, the recidivism rate — the percentage of people apprehended more than once by a Border Patrol agent — has increased from 7 percent to 27 percent since fiscal year 2019.
Before Title 42, people entering the US through the border would be detained by immigration agents, processed and placed in removal proceedings unless the person claimed asylum. Under Title 42, immigration agents immediately deport people to Mexico, regardless of whether they claim asylum.
Earlier this year, the Biden administration tried to end the use of Title 42. But in April, a group of Republican-led states filed a lawsuit, later joined by Texas, in Louisiana, arguing that repealing Title 42 would create chaos in the US – borders Mexico and forces states to spend taxpayer money providing services such as health care to migrants.
In May, U.S. District Judge Robert R. Summerhays blocked the Biden administration from ending Title 42, and the administration appealed; the case is pending in the 5th US Circuit Court of Appeals.
Sullivan’s decision on Tuesday was welcomed by immigrant rights advocates who argued that Title 42 has put vulnerable migrants in dangerous situations in Mexican border towns where they are frequent targets of criminals.
“This ruling is proof that Title 42 was never about public health — it was a thinly veiled racist smokescreen put in place by the previous administration and continued by the current administration,” said Donna De La Cruz, director of communications for the Immigrant Legal Resource Center , a national immigrant rights organization. “President Biden must end the use of Title 42 for asylum seekers once and for all.”
Texas Gov. Greg Abbott, who has often criticized Biden’s immigration policies, said in a tweet that Sullivan’s decision was “disastrous,” adding that it signals to criminals that the border is open.