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Supreme Court Upholds Title 42 Migrant Policy During Court Fight

Continuing the inhumane policy will lead to more needless deaths, progressives say.

A man holds his sleeping son as they wait in a bus station in El Paso, Texas, on December 21, 2022.

Rights advocates on Tuesday expressed disappointment and frustration with a 5-4 U.S. Supreme Court order to keep the Title 42 policy used to swiftly expel migrants in place — at least until justices hear arguments for the case in February, with a final decision due by the end of June.

Title 42 is the section of the U.S. public health code that the administrations of both former President Donald Trump and President Joe Biden have used to deny millions of people typical asylum proceedings during the Covid-19 pandemic.

“Seeking asylum is a human right. This is a disastrous order by the Supreme Court,” asserted Congressman Jesús “Chuy” García (D-Ill.), who is running for mayor of Chicago. “Title 42 is a cruel policy that was implemented using public health as an excuse. This extension of the policy until next June will put more asylum-seekers in harm’s way.”

The decision from five right-wing members of the high court — Justice Neil Gorsuch and the three liberals dissented — comes after Chief Justice John Roberts last week temporarily blocked a planned rollback of the policy ordered by a district judge.

Melissa Crow, director of litigation at the Center for Gender & Refugee Studies, said in a statement Tuesday that “the district court got it right: Title 42 is an illegal policy that has caused irreparable harm to people seeking asylum.”

“The Supreme Court’s decision to extend the stay pending certiorari will have deadly consequences for people fleeing persecution,” Crow charged, noting that “human rights investigators have documented over 13,000 violent attacks against people expelled to Mexico under the Biden administration, a figure that represents just the tip of the iceberg.”

“With the end of Title 42 once again delayed, this toll will rise,” she said. “The Biden administration was prepared to end Title 42 last week, and service providers stood ready to welcome asylum-seekers. Instead, people seeking safety at the border are spending another holiday season languishing in dire conditions — facing freezing temperatures and the ever-looming threat of violence — with no end in sight.”

Karla Marisol Vargas, senior attorney with the Beyond Borders Program at the Texas Civil Rights Project, also stressed that “as a Covid control strategy, a humanitarian policy, and a border policy, Title 42 has not only failed but caused irreparable harm on a massive scale.”

“We are incredibly disappointed” by the order, she added, warning that continuing the policy will lead to “more needless deaths.”

Oxfam America’s Diana Kearney argued that the Supreme Court’s “cruel” decision “is not based on our laws but rather on our country’s worst xenophobic impulses,” while Javier O. Hidalgo at RAICES called it “a damning indicator of just how far the U.S. will go as a nation in turning its back on not only the immigrant community but also the rule of law.”

Several critics of the policy vowed to keep up the fight. ACLU attorney Lee Gelernt, the lead lawyer in a case against Title 42, said that “we continue to challenge this horrific policy that has caused so much harm to asylum-seekers and cannot plausibly be justified any longer as a public health measure.”

The New York Times noted Tuesday that “the justices said they would address only the question of whether the 19 mainly Republican-led states that had sought the stay could pursue their challenge to the measure.”

While Justices Elena Kagan and Sonia Sotomayor did not explain their votes, Justice Ketanji Brown Jackson joined an opinion in which Gorsuch argued that the legal question the court plans to tackle “is not of special importance in its own right and would not normally warrant expedited review.”

“The current border crisis is not a Covid crisis,” Gorsuch wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

Given that the justices are set to address such a limited legal question, some advocates and legal experts have suggested that Biden — who faced intense criticism for continuing the Trump policy — should find a way end Title 42 before the court weighs in.

“The Supreme Court’s decision today to prohibit the termination of Title 42 is a devastating failure of justice for the thousands of people and families who have been continually subjected to violence and cruelty because of this policy,” declared New York Immigration Coalition executive director Murad Awawdeh. “For years, Title 42 has proven to be a horrifying distortion of American values, existing as a front for xenophobia and racism.”

“As Title 42 continues to be shuttled through the courts, it has resulted in untold pain and lives lost for those who are simply seeking freedom and safety in the United States,” he continued. “This is morally and ethically unacceptable, and the Supreme Court should be ashamed that they continue to sustain such an unsparing policy. We urge the Biden administration to take meaningful action and secure additional protections for asylum-seekers, such that a humane and fair asylum system can finally be achieved for all.”

Karine Jean-Pierre, the White House press secretary, said in a statement that the order “keeps the current Title 42 policy in place while the court reviews the matter in 2023” and “we will, of course, comply with the order and prepare for the court’s review.”

Jean-Pierre added:

At the same time, we are advancing our preparations to manage the border in a secure, orderly, and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration. Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely. To truly fix our broken immigration system, we need Congress to pass comprehensive immigration reform measures like the ones President Biden proposed on his first day in office. Today’s order gives Republicans in Congress plenty of time to move past political finger-pointing and join their Democratic colleagues in solving the challenge at our border by passing the comprehensive reform measures and delivering the additional funds for border security that President Biden has requested.

“With over a third of a billion people in humanitarian need globally and over 100 million people displaced, the guardrails designed to protect people from humanitarian crises are quickly eroding and the continued undermining of safe, legal pathways to refuge such as the asylum process is not helping,” said Kennji Kizuka, director for asylum policy at the International Rescue Committee (IRC).

“The U.S. can and should build a safe, orderly, and humane process to welcome asylum-seekers,” Kizuka continued, “and simultaneously commit and lead regional efforts to address the underlying issues that are causing humanitarian needs and displacement to continue spiraling in the Americas.”

Julio Rank Wright, IRC’s regional vice president for Latin America, added that “ending restrictive border measures is essential, but it is also important that the international community increases funding and humanitarian resources for countries of origin and those along the routes that asylum-seekers follow to ensure a protection response that is robust enough to meet the moment.”