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Judge Strikes Down Title 42, Which Helped Expel Millions of Asylum Seekers

The judge found that officials never had solid reasoning for enforcing the cruel anti-immigrant policy.

Immigrants wait in the early morning hours to be processed by the U.S. Border Patrol after crossing from Mexico, with the U.S.-Mexico border barrier in the background, on May 23, 2022, in Yuma, Arizona.

A federal judge has struck down an anti-immigration policy originally invoked by President Donald Trump that has seen millions of asylum seekers expelled, marking a victory for immigrant advocates and human rights experts who have long called the policy cruel and inhumane.

Washington, D.C. U.S. District Judge Emmet Sullivan ruled on Tuesday that the policy, known as Title 42, is “arbitrary and capricious” and that it is in violation of the Administrative Procedure Act, which guides how federal agencies make and enforce regulations.

With “GREAT RELUCTANCE,” Sullivan wrote, he has issued a stay, as requested by the Biden administration. This means that the policy will stay in place until December 21, at which point officials will have to stop enforcement of the policy.

Title 42 had originally been put in place in 2020 to supposedly stop the spread of COVID-19, though public health experts say that there is no evidence that it has done so. Further, in vacating the policy, Sullivan wrote that the Centers for Disease Control and Prevention (CDC) had failed to consider the “harm that could be caused” by expulsions and didn’t consider alternative approaches to the policy, such as processing asylum seekers outdoors, having them self-quarantine, or even solutions like vaccination and testing.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor,” Sullivan wrote.

Sullivan concluded that the CDC had never had solid reasoning for implementing Title 42, as Immigration Council Policy Director Aaron Reichlin-Melnik pointed out on Twitter. The judge cited records brought by the plaintiffs, which show that during the first seven months of the policy, only one asylum seeker per day on average tested positive for COVID.

Immigration groups that have sued over the policy, which was put in place by Trump but embraced by the Biden administration, celebrated the judge’s ruling.

“This is a huge victory and one that literally has life-and-death stakes,” said American Civil Liberties Union (ACLU) attorney Lee Gelernt, who led the lawsuit. “We have said all along that using Title 42 against asylum seekers was inhumane and driven purely by politics. Hopefully this ruling will end this horrific policy once and for all.”

“Title 42 was never about public safety or the pandemic, but rather is shrouded in xenophobia and anti-immigrant campaigns to keep immigrants out of the U.S.,” said Refugee and Immigrant Center for Education and Legal Services (RAICES) litigation director Tami Goodlette. “Judge Sullivan’s decision sends a clear message to those who try to bake their xenophobia into future policies: Seeking asylum is a human right.”

Under Title 42, border agents have expelled asylum seekers nearly 2.5 million times. The Biden administration was blocked from being able to end the policy earlier this year. But, even as it has postured as being against the policy, the Biden administration has expelled more asylum seekers under the policy than the Trump administration ever did. Biden officials even expanded the use of the policy last month in order to expel Venezuelan asylum seekers at the border.

These expulsions have put asylum seekers escaping violence and political instability at risk of being returned to hostile and dangerous conditions in places like Haiti or camps along the Mexico-U.S. border.

Progressive lawmakers and immigration advocates have expressed deep frustration over the Biden administration’s use and expansion of the rule, despite Biden’s promise that he would end use of the policy during his first year in office. Detractors of the rule say that Title 42 has been used to discriminate against non-white immigrants, pointing out that Ukrainian asylum seekers who are fleeing conditions similar to those faced by asylum seekers from certain predominantly Black, Latinx or non-Christian-majority countries have not been expelled at nearly the same rate.

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