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A family is taken to an immigration processing center after crossing the U.S.-Mexico border.

A family seeking asylum prepares to be taken to a border patrol processing facility after crossing into the U.S. on June 16, 2021 in La Joya, Texas. (Photo: Brandon Bell/Getty Images)

'Arbitrary, Racist, and Unfair': Judge Blocks Biden From Ending Title 42

"Only the coyotes profiteering off of people seeking protection have reason to celebrate this ill-reasoned ruling," said one migrant rights advocate.

Brett Wilkins

Immigrant rights advocates on Friday denounced a federal judge's injunction blocking the administration of U.S. President Joe Biden from lifting Title 42, a Trump-era public health order that both presidents have invoked to deport around two million asylum-seekers under the pretext of the Covid-19 pandemic.

"The decision undermines the Biden administration's efforts to implement what the vast majority of Americans support—a fair, humane, and orderly immigration system."

Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana—an appointee of then-President Donald Trump and member of the right-wing Federalist Society—concurred with 24 Republican-controlled states' assertion that the Biden administration's decision to terminate the Centers for Disease Control and Prevention (CDC) rule "violates the Administrative Procedures Act" because it "failed to consider the effects of a Title 42 termination on immigration enforcement and the states."

Tami Goodlette, director of litigation at the immigrant legal aid group RAICES, called the judge's decision "both infuriating and unlawful."

"President Biden could have ended Title 42 and all of Trump's inhumane and immoral policies as soon as he took office in January 2021 with the flick of a pen," she continued, "but instead, he surrounded himself with centrist advisers who coddled his fears on immigration reform and embraced deterrence as their central priority on immigration."

"Now, the anti-immigrant right-wing agenda continues to fly forward unchecked and immigrants seeking safety and asserting their legal right to asylum will continue to pay the price," Goodlette added.

The Justice Department said it would appeal the ruling, citing the CDC's "expert opinion that continued reliance" on Title 42 "is no longer warranted."

First implemented by the Trump administration in March 2020 at the pandemic's onset, Title 42—a provision of the Public Health Safety Act allowing the government to prohibit entry into the U.S. of people who could pose health risks—was continued by Biden.

More Title 42 removals have occurred during Biden's tenure than Trump's, although rights groups welcomed a March announcement that the White House would end the policy on May 23.

Opponents of the move responded last month by advancing a bill by Sen. James Lankford (D-Okla.)—and co-sponsored by right-wing Democrats including Sens. Kyrsten Sinema (D-Ariz.) and Mark Kelly (D-Ariz.) and Rep. Henry Cuellar (D-Texas)—to codify Title 42.

"If Congress locks Title 42 into law, what we're really talking about is creating an asylum system that selectively doles out protection for certain groups, while keeping out Black and Brown people," Helena Olea, associate director of programs at Alianza Americas, said in a statement.

Human rights advocates say Title 42 forces people legally seeking asylum in the United States into perilous situations in Mexican border cities, where Human Rights First has identified nearly 10,000 violent attacks on migrants.

"Beyond the devastating humanitarian impact of Title 42, the court's ruling also fails to recognize well-established domestic and international law," said Krish O'Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service. "Seeking asylum is a legal right, and yet this bedrock of the American legal system is quickly eroding at a time of unprecedented need."

"The decision undermines the Biden administration's efforts to implement what the vast majority of Americans support—a fair, humane, and orderly immigration system," she added. "Instead, it maintains a status quo that has been wholly ineffective in establishing a secure border. Only the coyotes profiteering off of people seeking protection have reason to celebrate this ill-reasoned ruling."

Some activists have pointed to the government's open arms to Ukrainians fleeing Russia's invasion as proof that Title 42 is motivated more by racism than by public health concerns, although Ukrainian refugees have also been denied entry into the United States under the rule.

"The outpouring of support for Ukrainians shows that should the U.S. government muster the political will, it is possible to manage large numbers of asylum-seekers at the border in an orderly and humane way," asserted Oscar Chacón, executive director of Alianza Americas. "Nonwhite asylum-seekers and migrants also need a humanitarian response. Instead, we are deporting them in chains."

Olea contended that "Title 42 was never about protecting public health. It was about eliminating the possibility of asylum for people who cross the border by foot, fleeing instability and violence resulting from multiple factors, including U.S. policies."

National Immigration Project executive director Sirene Shebaya warned that "by denying people their right to seek asylum, Title 42 will continue to subject thousands of people to harm every day that it remains in place."

"Nobody should be complicit in the violence and harm that this policy has produced—not the courts, and not our representatives in Congress," she continued. "And a group of anti-immigrant states should certainly not be dictating our national border and immigration policy."

"Despite this devastating court decision, the fight to restore our asylum system is not over," Shebaya vowed. "We will continue working relentlessly with our partners to bring an end to this unlawful policy and welcome everyone with dignity."


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