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Chief Justice Roberts Grants GOP Request to Halt End of Title 42 Policy

The Biden administration and rights advocates have until 5 pm ET on Tuesday to respond.

Immigrants wait to enter a shelter at the Sacred Heart Church on December 17, 2022, in El Paso, Texas.

In a move that outraged migrant rights advocates, U.S. Supreme Court Chief Justice John Roberts on Monday granted a request from 19 GOP-led states to temporarily stop the Biden administration from winding down the Title 42 policy used to swiftly expel asylum-seekers during the Covid-19 pandemic.

Title 42 is the part of the U.S. public health code that both the Trump and Biden administrations have relied on to deny millions of people typical asylum proceedings. U.S. District Judge Emmet Sullivan of the District of Columbia ruled last month that the policy should end by this Wednesday.

A three-judge panel of the U.S. Court of Appeals for D.C. on Friday unanimously rejected the states’ attempt to keep the policy in place. However, Roberts, who hears appeals from that court, issued a stay to stop the policy from ending and gave the Biden administration and rights advocates until 5:00 pm ET Tuesday to respond.

The U.S. Department of Homeland Security said late Monday that “as required by the Supreme Court’s administrative stay order, the Title 42 public health order will remain in effect at this time and individuals who attempt to enter the United States unlawfully will continue to be expelled to Mexico.”

As GOP leaders—and right-wing Democratic Sen. Joe Manchin (W.Va.) — welcomed Roberts’ order as a “big win,” rights advocates like Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, said that “it is deeply regrettable that the Supreme Court has delayed the restoration of long-standing asylum law. The Biden administration must make a full-throated defense of our humanitarian obligations in the face of politically motivated litigation.”

“Title 42 has never been grounded in any public health rationale,” she noted. “Beyond its blatant violation of U.S. law and common decency, the policy has been highly ineffective as a border enforcement tool. More than 2.4 million expulsions later, Title 42 has only driven up repeat attempts to cross the border and lined the pockets of cartel smugglers who prey on vulnerable asylum-seekers.”

“The U.S. is facing a new normal in terms of the sheer scale of global displacement today,” she continued. “More than ever before, children and families are seeking safety on our shores as they escape unimaginable violence, persecution, poverty, and climate disaster. It is incumbent upon the Biden administration to continue operationalizing its plan to surge resources, deploy personnel, and bolster nonprofits and local communities on the ground to welcome asylum-seekers with dignity.”

Polling conducted by YouGov for the Los Angeles Times earlier this month shows that 55% of Americans believe the U.S. should “continue to offer asylum to people who arrive at the border if they are found to be fleeing persecution in their home countries,” compared with just 23% who don’t support the policy and 22% who are unsure.

America’s Voice executive director Vanessa Cárdenas said in a statement before Roberts’ order Monday that “ahead of the end of Title 42 and in advance of potential new and restrictive asylum policy announcements from the Biden administration, the new polling offers a reminder that Americans rightly support protecting those fleeing violence and human rights abuses.”

“A strong majority of Americans want forward-looking solutions on immigration that are consistent with our proudest national values — not warmed over versions of Donald Trump and Stephen Miller’s cruelties, chaos, and failures,” Cárdenas continued, taking aim at the former president and his adviser who was the driving force behind the administration’s various anti-immigrant policies.

“The goals of our policy should never be to eliminate access to our courts for those genuinely fleeing for their lives and the safety of their families or to truncate the asylum process so much that we return people to danger or death,” she said. “Seeking asylum is not only legal, but having a process for asylum-seekers is a requirement of U.S. and international law and treaty agreements. The American people seem to understand the deeply held value of allowing the U.S. to remain a beacon of hope for refugees fleeing danger better than many of our politicians.”

While Roberts’ intervention Monday leaves migrants at the border in limbo, some experts suggested that given how little time the chief justice gave the Biden administration and advocates to respond, the court could issue a final decision before the end of the year.

The Texas Tribune reported that in response to more people crossing the southern U.S. border with expectations that the Title 42 policy will end, Oscar Leeser, the Democratic mayor of El Paso, Texas, issued an emergency declaration on Saturday night, aiming to “unlock additional resources and expand available shelters for migrants as evening temperatures are forecast to drop below freezing in the coming week.”