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Update November 16, 2022: The judge has granted an extension until Dec. 21 for this ruling to take effect, though if an appeal is filed, that deadline could be put on hold.
By Miriam Raftery
File photo: migrants in Mexico: CC by SA via Bing
November 15, 2022 (Washington D.C.) -- A federal court today struck down Title 42, which was used by the federal government to expel asylum seekers during the COVID-19 pandemic. The ruling applies to families and single adults.
The ruling would take effect immediately; however, the Justice Department and the Department of Homeland Security filed an emergency response late today asking the judge to stay his decision for five weeks, through Dec. 21—just days before Christmas--so that DHS can surge resources to secure the border and coordinate the policy’s end with state and local governments, as well as migrant aid groups. The Washington Post reports that plaintiffs have not opposed the stay motion/
District Judge Emmet Sullivan in Washington, DC, found the Title 42 order to be “arbitrary and capricious in violation of the Administrative Procedure Act.” The judge faulted the Centers for Disease Control for “its decision to ignore the harm that could be caused” by issuing the policy. He also noted that the CDC failed to explain why it didn’t assess alternatives, such as whether it could have “ramped up vaccinations, outdoor processing, and all other available public health measures.”
The policy has been used to expel over 1 million migrants since the pandemic began, according to CNN. The ruling comes amid a surge of Venezuelan migrants at the border, posing a dilemma for the Biden administration, though the decision is being hailed by immigration advocates.
The American Civil Liberties Union, Center for Gender & Refugee Studies, Oxfam America, Texas Civil Rights Project and other groups sued the Trump administration over Title 42 expulsions in 2020. After hitting an impasse in negotiations with the Biden administration, the groups went back to court in July 2021 to seek an immediate termination of this policy.
They successfully argued that Title 42 restricted immigration at the border based on an unprecedented and unlawful invocation of the Public Health Service Act. The policy was first implemented during the Trump administration, in violation of longstanding immigration statutes requiring that asylum seekers receive a full and fair proceeding to determine their right to protection in the United States.
ACLU attorney Lee Gelernt, the lead lawyer in the Title 42 challenge, hailed the win. “This is a huge victory and one that literally has life-and-death stakes,” Gelernt said. “We have said all along that using Title 42 against asylum seekers was inhumane and driven purely by politics. Hopefully this ruling will end this horrific policy once and for all.”
Melissa Crow, director of litigation at the Center for Gender & Refugee Studies, said, “For over two years, the Title 42 policy has unjustly slammed the door on people seeking safety in the United States. Desperate families, children, and adults have been deprived of their right to seek asylum and returned to countries where they face violence, torture, and even death. Today’s ruling affirms that there has never been a public health rationale for expelling asylum seekers to danger. The Biden administration must now heed the court’s order and swiftly restart asylum processing at the southern border.”
Karla Marisol Vargas, senior attorney with the Beyond Borders Program at the Texas Civil Rights Project, stated, “Today’s decision is a win for the thousands of individuals hoping to exercise their right to safety. For the first time in years, people who are seeking protection at our borders, the majority of them Black, Indigenous, and Brown, will be allowed to exercise their right to seek safety and be processed under U.S immigration law, rather than being automatically sent back to danger. We expect that without Title 42 in place, the U.S. will have the ability and the capacity to process people — it’s a matter of will….Ending Title 42 is the first step to restoring access to asylum and ensuring we welcome all people with dignity, respect, and compassion.”
Diana Kearney, senior legal advisor at Oxfam America: “We are thrilled that Judge Sullivan’s decision ends a racist and illegal policy that sacrificed the lives of vulnerable children, women, and men at the political altar. While nothing can undo the incredible violence that millions of refugees have endured at the hands of these cruel and misguided polices, we welcome the renewed opportunity for the United States to offer asylum to refugees and restore respect for the rule of law.”
Ruling: https://www.aclu.org/legal-document/opinion-huisha-huisha-v-mayorkas
Statement: https://www.aclu.org/press-releases/federal-court-strikes-down-title-42-major-victory-asylum-seekers
Case details: https://www.aclu.org/cases/huisha-huisha-v-mayorkas
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