Federal judge rules to vacate Title 42, the pandemic-era block on asylum at the border

Published: Wednesday, November 16, 2022 - 11:06am
Updated: Friday, January 20, 2023 - 4:56pm
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A federal judge in Washington, D.C., has ruled to vacate Title 42 — the pandemic-era protocol that allows U.S. border officers to quickly turn away migrants and asylum seekers and send them back across the border.

It's the latest and most significant development in a back-and-forth court battle over the protocol, which was enacted by the Trump administration in the spring of 2020 in the name of protecting public health during COVID-19.

The American Civil Liberties Union first filed suit against the Trump administration on behalf of a group of asylum-seeking families, arguing the protocol violated U.S. asylum law.  

Stephen Kang, detention attorney with the ACLU Immigrants’ Rights Project, says ACLU lawyers before the D.C. court argued Title 42 did not stop the spread of COVID-19 and the government could put additional safety measures into place — like testing, vaccines and social distancing.

"You know, there’s a variety of kinds of claims that we raised, but the core claim was that the agency acted arbitrarily in continuing to implement the Title 42 process," he said. "Our view is that the order requires the government to stop using Title 42 across the board."

In a ruling Tuesday afternoon, District Judge Emmet G. Sullivan says says families named as plaintiffs in the ACLU's original suit should not be subject to Title 42 and says the protocol as a whole is "arbitrary and capricious in violation of the Administrative Procedures Act." 

Kang says the Biden administration should resume normal asylum processing at border in compliance with the new order. The Department of Homeland Security did not immediately respond to questions about whether the Biden administration plans to appeal the ruling. But in a late filing Tuesday, the Biden administration requested a five-week stay before the order takes effect to prepare for the change at the border, a stay the administration says the ACLU is not opposed to. 

Judge Sullivan granted the request Wednesday morning and under it, the use of Title 42 will be extended until at least Dec. 20.

The Biden administration's attempt to roll back Title 42 earlier this year was blocked by a separate court ruling in the U.S. Fifth Circuit Court of Appeals, which sided with states suing to keep the protocol in place. 

Monika Langarica, is a staff of attorney with the UCLA Center for Immigration Law and Policy, is one of a group of lawyers and legal aid groups trying to intervene in the Louisiana case on behalf of asylum seekers. She says they’re watching closely now to see what’s next. 

"So effectively right now, there is an order out of Louisiana blocking the termination of a policy that has now been found wholly unlawful by the court in D.C.," she said. "Right now, irrespective of what's happening in the Louisiana case, right now the Biden administration is poised, and really required by this order of the D.C. distict court, today, full stop ... everybody's eyes should be on the Biden administration's next move as to Title 42."

Both rights advocates and public health experts have argued the protocol is ineffective and stopping the spread of COVID-19 and blocks the ability to seek asylum at the border, a right under international and U.S. law. 

Though it began under the Trump administration, the protocol has also been a big part of the Biden administration's border policy. It's been used on more than a million migrants and asylum seekers from across Central America, Mexico, Haiti and now, under a new DHS policy rolled out in October, Venezuelans.