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Federal judge blocks Biden administration from lifting Title 42 for now

<i>Felix Marquez/AP</i><br/>Nicaraguan migrants walk on the US-Mexico border
Felix Marquez/AP
Nicaraguan migrants walk on the US-Mexico border

By Priscilla Alvarez, CNN

A federal judge in Louisiana has for now blocked the Biden administration from ending a Trump-era pandemic restriction, known as Title 42, at the US-Mexico border, thwarting plans to terminate the controversial public health authority.

Since taking office, President Joe Biden’s administration has continued to rely on Title 42, a public health authority invoked at the onset of the coronavirus pandemic that allows border officials to turn migrants away at the US-Mexico border.

In early April, though, the US Centers for Disease Control and Prevention announced plans to terminate the order. The CDC said at the time it’s no longer necessary given current public health conditions and the increased availability of vaccines and treatments for Covid-19. The decision sparked a flurry of criticism by Republicans and Democrats amid heightened concerns over a migrant surge when the authority lifts.

But just days away from Title 42 ending this month, Judge Robert Summerhays of the Louisiana Western District Court found that the Biden administration didn’t follow the right procedures in ending the authority and argued that while the administration may invoke an action under emergency conditions, those may not apply with respect to terminating it.

“Simply put, the CDC has not explained how the present circumstances prevented the CDC from issuing the Termination Order through the required notice and comment process under the APA,” Summerhays wrote, referring to the Administrative Procedure Act.

The termination of Title 42, the judge concluded, is not exempt from the notice and comment process, which can potentially take months. The public health authority, which has been fiercely criticized by immigrant advocates, will remain in effect for now.

Lee Gelernt, ACLU attorney leading lawsuits against Title 42 in Washington, DC, called the ruling “wrong.”

“The ruling is wrong, inconsistent with the considered judgment of the CDC, and should be immediately appealed by the administration. The lawsuit is the height of hypocrisy; the States that brought it seem only to want COVID restrictions when it comes to asylum seekers,” he said in a statement.

“Notwithstanding this injunction, a parallel injunction in DC prohibits the use of Title 42 to expel families who would face persecution or torture,” Gelernt added.

Department of Justice spokesman Anthony Coley said Friday that the department intends to appeal the decision.

“The Centers for Disease Control and Prevention (CDC) invoked its authority under Title 42 due to the unprecedented public-health dangers caused by the COVID-19 pandemic. CDC has now determined, in its expert opinion, that continued reliance on this authority is no longer warranted in light of the current public-health circumstances. That decision was a lawful exercise of CDC’s authority,” Coley said in a statement.

White House press secretary Karine Jean-Pierre said the Biden administration disagreed with the ruling, but that it would “continue to enforce the CDC’s 2020 Title 42 public health authority pending the appeal.”

In the meantime, she said, the Department of Homeland Security “will continue planning for the eventual lifting of Title 42 in light of CDC’s public health judgment.”

Arizona Attorney General Mark Brnovich, a Republican who was among the states suing the Biden’s administration for its decision to end Title 42, called Friday’s ruling a “great win” on Twitter.

“Title 42 is upheld by a federal judge,” Brnovich, who is running for a US Senate seat in his state, wrote. “Our office will continue to do everything in our power to push back against the lawlessness of the Biden administration.”

The ruling stems from a lawsuit filed by Arizona, Louisiana and Missouri in April against the Biden administration’s decision to end Title 42. More than a dozen states, mostly GOP-led, later joined the suit.

Last week, Summerhays heard arguments in the case in a more than two-hour hearing, largely focusing his questions on the harm to the states and whether the administration followed proper procedures, noting that emergency conditions have changed, potentially allowing for outside input. Summerhays had previously temporarily blocked the administration from winding down the public health order before the termination date.

In the early days of the coronavirus pandemic, the CDC issued the public health order, which officials said aimed to stop the spread of Covid-19. The order allowed authorities to swiftly expel migrants at US land borders, and it’s been extended multiple times. The policy is widely known as Title 42, for the portion of US code that allowed the CDC director to issue it.

The border restrictions were controversial from the moment the Trump administration announced them. Immigrant rights advocates argued officials were using public health as a pretext to keep as many immigrants out of the country as possible. Public health experts also slammed the policy, saying it wasn’t justified by the circumstances.

Under Title 42, authorities expelled migrants at the US-Mexico border more than 1.9 million times in just over two years, according to US Customs and Border Protection data. The US asylum system effectively screeched to a halt, with migrants who claimed they were fleeing persecution blocked from making their cases — something that US and international law says they should have a chance to do.

Migrants encountered under Title 42 are either expelled to their home countries or into Mexico, where human rights advocates say they have documented many abuses.

This story has been updated with additional details Friday.

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