Federal Judge Ends Title 42’s Migrant Expulsion of Asylum Seekers

Migrants arrive in Nuevo Laredo, Mexico, after being sent across the border by U.S. Customs and Border Protection in July 2019. Source: Miguel Gutierrez Jr./The Texas Tribune

On Tuesday, US District Court Judge Emmet Sullivan blocked Title 42, an emergency regulation that allowed the expulsion of migrants due to threats of COVID-19. 

The judge claimed that it was “arbitrary and capricious, [and] in violation of the Administrative Procedure Act,” which delimits how federal agencies develop and issue regulations. Hundreds of thousands of migrants have been expelled from the United States since Title 42 was put in place in 2020.

This public health order, announced by the Center for Disease Control and Prevention in March 2020, comes from Section 265 of U.S. Code Title 42, which allows the CDC to expel migrants when there is “a serious danger of the introduction of [a communicable] disease into the United States.” It was implemented by the Trump Administration, and some argue that it was used as an excuse to block immigration. 

A press release by the House Select Subcommittee on the Coronavirus Crisis last month claimed that “Trump Administration officials exploited CDC’s Title 42 authority to effectively close the southern border under the guise of mitigating spread of the virus.”

Because Title 42 allows expulsion instead of deportation, migrants are not allowed to request asylum. Instead, they are immediately removed from the country unless they can demonstrate a serious danger in returning—something that is extraordinarily difficult to prove. In less than three years, there have been 2.5 million expulsions under Title 42, 80 percent of which have occurred during Biden’s presidency. Nevertheless, many of them are likely to have been repeat entry attempts.

Currently, the Biden Administration’s border strategy has been controversial. He campaigned on protecting the human rights of migrants and has reversed several Trump-era policies. 

In April, he announced a plan to end Title 42, which was summarily blocked by a federal judge in Louisiana. He has since reversed policy and expanded Title 42 to include Venezuelan immigrants, and with a recent wave of migration, has tightened the border policy. 

Biden’s response to the judge’s ruling was a request for a five week reprieve to arrange the transition back to regular immigration processing.

Estimated Outcomes of Border Apprehension, February 2021 through April 2022. Source: American Immigration Council

Because access to asylum has been blocked at legal ports of entry, many migrants have no choice but to make dangerous trips through unofficial areas. Moreover, expelled migrants face serious dangers when they are forcefully returned to their home country or to Mexico. 

According to a Human Rights Watch report, there have been over 10,000 cases of “murder, kidnapping, rape, torture, and other violent attacks against people blocked in or expelled to Mexico due to Title 42.” In his memorandum opinion, Judge Sullivan explains that "it is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of non-citizens seeking safe harbor."

There have also been complaints about a racial double-standard. Although Title 42 applies to all migrants, as people coming from Mexico and the Northern Triangle countries of Guatemala, Honduras and El Salvador have been expelled at much higher rates compared to other asylum seekers, such as Ukrainians.

The justification for implementing Title 42 has been refuted by public health experts. The pandemic was already widespread by the time it was put into practice, and there has been no evidence presented supporting the risk migrants bring COVID-19 risks. Essentially, migrants have been denied the right to seek asylum on questionable grounds.

Lee Gelernt, the American Civil Liberties Union attorney that filed the lawsuit, celebrated the ruling, explaining that “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… This ruling is of enormous significance for asylum-seekers and will hopefully put an end to the misuse of public health laws to block desperate people from seeking protection.”

On the other hand, some people are concerned that the end of Title 42 will encourage even more migrants to seek asylum. Texas Governor Greg Abbott lamented in a tweet that “This will further signal to cartels, human smugglers, & illegal immigrants that the border is wide open—inciting more violence & lawlessness.” 

Either way, the full effect of this decision will be seen on Dec. 21, when the ruling is properly put into action.