Federal Court Blocks Biden From Ending Title 42

A district judge ruled that the Biden Administration should continue exiling migrants in Title 42. This Title 42-related COVID-19 health measure was first introduced by President Donald Trump. The decision delivers a blow to the Administration’s plan to end the controversial program on May 23.

This ruling prohibits the Administration to end the policy before a complete trial is conducted on its merits. It is expected that this will take many months.

Judge Robert Summerhays from the U.S. District Court Western District of Louisiana Lafayette Division sided with attorneys general from Arizona, Missouri, and Louisiana, who brought a lawsuit on April 3 arguing that the Administration’s move to end Title 42 failed to meet standards set by the Administrative Procedure Act. Republican and some moderate Democratic lawmakers have publicly criticized the Administration’s effort to end the program, citing Department of Homeland Security (DHS) predictions that doing so would trigger an increase of migrants at the U.S.-Mexico border.

Title 42, according to immigrant rights activists is unlawful because it prohibits individuals from exercising their international right of asylum claim. They also claim that it has not been able to stop migration. U.S. Customs and Border Protection has made more than 1.8million expulsions since Title 42 was implemented by the Trump Administration in March 2020. Most of these were at the Southern Border, which denies migrants their legal right to request asylum.

Summerhays’s ruling marks a major victory for critics of the Biden Administration’s position on Title 42, and and is the latest example of the federal judiciary stymying Biden’s attempts to maintain control over U.S. immigration policy.

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Title 42 has been problematic since the beginning

Title 42 became controversial as soon as it was implemented. Immigrant advocates as well as experts in public health, including Anthony Fauci (director of the National Institute of Allergy and Infectious Diseases), almost instantly denounced it as preventing individuals from exercising their rights to seek asylum and because there is no scientific evidence that expulsions stop the spread of COVID-19.

But on April 1, when the U.S. Centers for Disease Control and Prevention (CDC) announced that it would lift the Title 42 order at the end of May, the already-controversial policy collided with the politics of midterm elections. Five Democrats and six Republican Senators filed a bill to prohibit the Biden administration from lifting Title 42 without creating a plan to stop a tsunami of immigration. 13 Democrats are among the bill’s 27 cosponsors.

These lawmakers also tried to derail a COVID-19/Ukraine aid spending package, until the Senate approves of the legislation. In order to get things moving faster, Congress eventually separated Ukraine aid from COVID-19 relief.

Arizona, Missouri, and Louisiana’s suit, which more than 20 states have since joined, argues that Title 42 must remain in place to stop a “catastrophe” at the border.

DHS was forced to stop its preparations for Title 42’s end by Summerhays on April 27. DHS had prepared a detailed memo to plan for an expected influx in migrants as a consequence of the ending of the measure. Summerhays extended Wednesday’s restraining orders to May 23 or until his final ruling on Friday.

Summerhays ordered Title 42 to be ended on May 20. DHS was also required to maintain records on how this policy is applied. Per the judge’s order, DHS must now file monthly reports indicting the number of single adults processed under Title 42 by country, “the number of recidivist border crossers for whom DHS has applied expedited removal”; “the number of migrants that have been excepted from Title 42 under the NGO-supported humanitarian exception process”; and “any material changes to policy regarding DHS’s application of the Title 42 process.”

Arizona Attorney General Mark Brnovich tweeted the ruling is a “significant win for the rule of law and for the safety of our communities.” Eric Schmitt, the Attorney General of Missouri, tweeted the decision was a “huge win for border security.”

Diana Kearney is a senior legal adviser at Oxfam. The migrant rights group was involved in separate litigations to repeal Title 42. “This decision to resuscitate Title 42 fuels the flame of our country’s worst xenophobic impulses, ignores our nation’s legal obligations to respect fundamental human rights, and exposes some of the world’s most vulnerable people to incredible violence,” she wrote in a public statement. “We will continue working with our partners on behalf of all asylum seekers to ensure the Biden administration follows through on its commitment to end this racist policy.”

Learn moreBiden Officials Deny U.S. Blame Biden Officials Deflect Blame as U.S.

This is the current status of Title 42

The injunction means that Title 42 will stay in place for the foreseeable future, “making it even more difficult for the Biden administration to manage the border,” says Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council. “The order will force them to keep the status quo.”

This ruling, according to immigrant rights advocates, will block years of efforts to restore asylum access at U.S. – Mexico border.

“It’s an expression of how extreme our country is,” Linda Corchado, director of the Las Americas Immigrant Advocacy Center in El Paso, Texas, tells TIME in an interview before the ruling came down. She also said that the injunction shows just how extreme the U.S. is on immigration policy issues. “It’s really upon the rest of this country to start finding its moral compass again…we are beholden to the rest of America and I think the rest of America doesn’t even know itself anymore.”

Advocates say that border cities such as El Paso or San Diego have been ready for Title 42’s end for many months. This includes keeping shelter capacity available, coordination with advocacy groups in other cities, raising funds to support legal representation and transportation for asylum seekers to reach their destination in the U.S., and funding other resources for them to begin the asylum process.

Expected influx of migrants to the U.S.-Mexico frontier

On April 26, DHS Secretary Alejandro Mayorkas issued a 20-page memorandum detailing the government’s plan to address the end of Title 42 by constructing temporary processing facilities, expanding COVID-19 vaccinations, expanding an existing intelligence unit to monitor migration patterns and crack down on smugglers, and the imposition of strict legal consequences on those who commit unlawful entry. It is unclear how much DHS was able to act on its plan before Judge Summerhays’ restraining order was issued.

Learn more The Battle Over ‘Remain in Mexico’ Shows How U.S. Immigration Policy Has Reached ‘Peak Confusion’

The injunction comes at the same time that the Biden Administration is before the Supreme Court arguing that it has the authority to end another the controversial Trump-era policy, the Migrant Protection Protocols (MPP), or the “Remain in Mexico” policy. MPP mandates that migrants seeking asylum in America must wait in Mexico for their claims to be reviewed.

The Biden Administration has been seeking to end the policy since June 2021, but Texas and Missouri challenged the Administration’s attempt to end the program. Since the state have won, the court ordered that the Administration keep up enforcement of MPP until the Supreme Court decides otherwise.

In the meantime, the court has ordered that Title 42 be enforced by Administration. Experts say the Administration’s effort to end Title 42 could mirror its legal battles over MPP. The lawsuit is the latest in a long series of litigation that show that it’s not Congress, or even the executive, that shapes U.S. immigration these days—it’s the federal judiciary.

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Send an email to Jasmine Aguilera at and Madeleine Carlisle at


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