Washington — A federal appeals court on Friday declined to delay the cancellation of pandemic-era border restrictions that are set to end next week, dismissing a request by Republican state officials who had warned that the termination of the policy, known as Title 42, will fuel a greater increase in migrant arrivals along the U.S. southern border.
The U.S. Court of Appeals for the District of Columbia Circuit refused to suspend a lower court ruling that will require the federal government to stop expelling migrants under the public health measure on Dec. 21.
Unless it is superseded by a Supreme Court order, the appeals court’s decision will pave the way for the termination of the Title 42 expulsion policy next week. The 19 Republican-led states seeking to delay the end of Title 42 previously said they would ask the Supreme Court to intervene if the Washington-based appeals court denied their request.
First invoked by the Trump administration in March 2020 at the start of the coronavirus pandemic, Title 42 is a public health law dating back to the late 19th century that the federal government has argued allows border officials to quickly expel migrants from the U.S. on the grounds that they may spread a contagious disease.
Citing Title 42, U.S. border officials under Presidents Trump and Biden have expelled migrants 2.5 million times to Mexico or their home country, without allowing them to request humanitarian protection, a right that asylum-seekers have under U.S. and international refugee law, federal government figures show.
While it reversed other Trump-era border policies, the Biden administration continued the Title 42 expulsions and has relied on the measure to manage an unprecedented flow of hundreds of thousands of migrants who have arrived along the U.S.-Mexico border over the past year and a half.
The emergency request decided on Friday was made by Alabama, Alaska, Arizona, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.
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The three-judge panel that reviewed the Republican-controlled states’ request said the states waited too long to try to intervene in the case over Title 42’s legality, which started in early 2021 due to a lawsuit from the American Civil Liberties Union. The ACLU has argued the policy is unlawful and violates the rights of asylum-seekers.
“In this case, the inordinate and unexplained untimeliness of the States’ motion to intervene on appeal weighs decisively against intervention,” the panel wrote in its four-page opinion on Friday.
The court-mandated revocation of Title 42 next week has alarmed Republican lawmakers and some moderate Democrats, who have expressed concern about the Biden administration’s preparations for the spike in migrant arrivals that’s projected to occur once the measure is lifted.
In fiscal year 2022, U.S. officials along the Mexican border stopped migrants over 2.3 million times, a record high, and carried out just over 1 million expulsions under Title 42, government data show. In recent days, the Texas border city of El Paso has seen a sharp increase in arrivals of Nicaraguan migrants that has strained the local shelter system.
But progressives and advocates for migrants have said Title 42’s end will allow the Biden administration to fully comply with its legal obligation to consider the cases of all asylum-seekers on U.S. soil. Title 42, they have argued, has made migrants easy prey to victimization in dangerous parts of northern Mexico.
Since the start of the Biden administration in January 2021, human rights researchers have recorded over 13,000 reports of kidnappings, rape and other attacks against migrants stranded in Mexico, according to a report released Friday by Human Rights First, a U.S.-based advocacy group.
“Ending Title 42 will save lives,” Lee Gelernt, the ACLU lawyer who challenged the pandemic rule, told CBS News. “This is not some technical abstract policy. It sends families with small children directly into the hands of waiting cartels.”
The Biden administration, meanwhile, has insisted it is prepared to lift Title 42 next week. It has also argued that the implementation of regular immigration procedures, such as deportations that come with multi-year banishments under U.S. immigration law and prosecutions of repeat border crossers, will gradually reduce the high number of illegal crossings.
Since its enactment, Title 42 has fueled a high rate of repeat crossings among migrant adults who try to enter the U.S. multiple times after being expelled to Mexico. The Biden administration said that recidivism rate will be curtailed once repeat crossers face the threat of detention, prosecution or multi-year exiles from the U.S.
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Title 42 was first authorized by the Centers for Disease Control and Prevention (CDC) in March 2020. While Trump administration officials portrayed the rule as a pandemic response measure, Title 42 was approved over the objection of CDC experts who questioned the public health rationale for the unprecedented policy.
Despite rescinding some Trump-era asylum and border restrictions, the Biden administration decided to keep Title 42, and defended it, including in federal court, as a critical public health rule to curb COVID-19 outbreaks.
The Biden administration sought to end Title 42 in the spring of 2022, pointing to the improving pandemic environment — and drop in coronavirus infections — but a coalition of Republican-led states convinced a federal court in Louisiana to block the policy’s termination on procedural grounds.
Then, on Nov. 15, another federal judge in Washington, D.C., declared Title 42 illegal, saying the government had not sufficiently explained the public health justification for the measure, or considered its impact on asylum-seekers.
In a filing in a separate court case on Friday, the Biden administration said it was prepared to comply with the ruling and officially halt the expulsions at 12 a.m. EST on Wednesday.
According to an internal notice by top U.S. Citizenship and Immigration Services official Ted Kim on Friday, the agency is training volunteers to conduct an increased number of interviews of asylum-seekers once Title 42 expires. Those interviews determine whether migrants have credible fear of persecution, and should be allowed to request asylum.
Biden administration officials are also considering adopting certain policies designed to deter migration, including an asylum restriction that would render migrants ineligible for U.S. protection if they did not ask for refuge in other countries first. Those measures could be paired with expanded opportunities for asylum-seekers to enter the country legally if they have U.S.-based financial sponsors.
