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The chief justice of the U.S. Supreme Court on Monday put on hold the planned lifting of an emergency health order that the federal government has used for more than two years to quickly turn away migrants, including asylum seekers, at the Southwest border.
The order by Judge John G. Roberts comes after an Arizona-led coalition of 19 states, including Texas, asked the Supreme Court on Monday to stop the repeal of the health order, known as Title 42, which was set to expire this Wednesday.
It’s unclear how long the temporary hiatus will last, but at his behest, Robertsgave the Biden administration until 4 p.m. central time Tuesday to respond.
The U.S. Department of Homeland Security said in a statement that the administration will continue to enforce Title 42, as required by the Supreme Court, “and individuals who attempt to enter the United States illegally will continue to be deported to Mexico.”
“While this stage of the litigation continues, we will continue our preparations to manage the border in a safe, orderly and humane manner when the Title 42 public health order lapses,” the statement said.
Last month, 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 the order to prevent people from accessing the asylum process was “arbitrary and capricious” and a violation of the law as it was not properly implemented. Sullivan ordered the Biden administration to immediately repeal Title 42, then later agreed to give the federal government until Dec. 21 to prepare.
Sullivan’s decision stems from a lawsuit filed in January 2021 by the American Civil Liberties Union and two Texas-based immigrant rights groups, which argued that Title 42 violates US asylum laws and that the Trump administration is used the pandemic as a pretext to invoke Title 42 and use it as an immigration tool.
The Biden administration said it would meet the Dec. 21 deadline, but also appealed Sullivan’s decision, saying it disagreed that the initial implementation of Title 42 was illegal. Then the coalition of statesasked the appeals court to temporarily halt the repeal of Title 42. On Friday, the appeals court denied the states’ request.
The Trump administration’s CDC invoked Title 42 in March 2020 — at the start of the U.S. coronavirus pandemic — for the first time since its inception in 1944, and said it was a necessary step to help stop of the spread of COVID-19 in immigration detention centers, where many migrants are housed after they arrive at the US-Mexico border. Dr. Anthony Fauci, the nation’s top infectious disease expert, has since said that immigrants are not increasing the number of COVID-19 cases.
Immigration officials have used the health order more than 2 million times to deport migrants, many of whom have been removed repeatedly after repeated attempts to enter the U.S. Under Title 42, the recidivism rate — the percentage of people detained more than once by an Agent of border patrol — increased from 7 percent to 27 percent from fiscal year 2019.
Gov. Greg Abbott, who has criticized President Joe Biden’s immigration and border policies, said in a tweet: “Texas and other states are urging the Court to keep Title 42 in place. Today’s order is a step in that direction.
In El Paso, which has recently seen a large increase in migrants crossing, officials said Monday they would continue with preparations as if Title 42 was still repealed Wednesday.
“We want to make sure we’re prepared,” El Paso Mayor Oscar Leeser said at a news conference. He added that there could be as many as 20,000 migrants waiting to cross the El Paso border, based on discussions with Mexican partners and Border Patrol agents.
Lesser declared a state of emergency on Saturday to expand shelter space and mobilize resources for migrants amid freezing temperatures. City and county officials are also coordinating with the American Red Cross to plan an emergency operation that could potentially shelter up to 10,000 people by the end of January, U.S. Rep. Veronica Escobar, D-El Paso, said in a press release Sunday.
Another federal court also got involvedTitle 42 after the Biden administration announced earlier this year that it planned to end it in May.
Arizona and more than a dozen other states filed a federal lawsuit April 3 in the Western District of Louisiana, asking a judge to stop the government from repealing Title 42. Texas filed a separate lawsuit April 22 seeking the same, but dropped the suit and joined to the case of the other country.
In May, U.S. District Judge Robert R. Summerhays in Louisiana blocked the Biden administration from ending Title 42. The administration appealed, and that case remains pending in the 5th U.S. Circuit Court of Appeals.