Rafael Bernal and Rebecca Beitsch, The Hill, November 15, 2022
A federal judge on Tuesday vacated the Title 42 policy that allowed border agents to rapidly expel migrants without letting them seek asylum, toppling a Trump-era policy embraced by the Biden administration.
U.S. District Judge Emmet Sullivan in Washington, D.C., found the policy violated the Administrative Procedures Act (APA), striking down the controversial policy and blocking the Biden administration from using it to turn away migrants.
Sullivan found the policy, crafted under the Trump administration in the earliest days of the pandemic, to be arbitrary and capricious and said it violated standards of the APA because the Centers for Disease Control and Prevention (CDC) “failed to adequately consider alternatives and the policy did not rationally serve its stated purpose.”
The judge also noted the CDC’s “decision to ignore the harm” caused by the policy likewise violated the APA.
The end of Title 42 will almost certainly be celebrated by immigrant advocates, but the sudden end to a key component of the administration’s border enforcement toolkit could enhance the perception of chaos at the border, even though it is largely credited with exacerbating recidivism from border crossers. The policy offers no penalty for those who cross again.
Title 42 was marketed as a pandemic response policy, but most observers deemed it a transparent attempt to use the pandemic as an excuse to gut asylum.
In his ruling, Sullivan agreed with the critics who questioned Title 42’s public health bona fides.
Under the policy, many foreign nationals who presented themselves at the border were not allowed to claim asylum and were instead immediately expelled to Mexico or their home country.
Mexico initially agreed, under pressure from the Trump administration, to receive Guatemalan, Honduran and Salvadoran nationals under the policy, but in October, Mexico cut a deal with the Biden administration to also receive Venezuelan nationals.
The Biden administration’s embrace of Title 42 — a signature Trump policy allegedly designed by Stephen Miller — was a gut punch to immigrant advocates, who thought Biden would restore full implementation of asylum law.
While Title 42 expulsions are down from their highest monthly numbers, more than 100,000 per month in spring of 2021 and 2022, 78,477 people were still processed using the policy in October.