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Federal judge blocks Biden’s termination of Title 42

Sections of the US/Mexico border wall are seen on May,8, 2021 in McAllen Texas, USA.As thousands of migrants arrive at the US border each week the jump in numbers has overwhelmed an unprepared US immigration system. (Photo by John Lamparski/Sipa USA)
John Lamparski
Sipa USA via Reuters
File Photo: Sections of the US/Mexico border wall are seen on May,8, 2021 in McAllen Texas, USA.

This post was updated on April 27 at 5:00 CST.

Louisiana U.S. District Judge Robert Summerhays officially ordered a temporary restraining order on Wednesday on what was to be the termination of Title 42, the U.S. health code that has allowed the Department of Homeland Security (DHS) to expel migrants who seek asylum over the last two years of the COVID-19 pandemic. The order will be in effect for 14 days. The judge had previously released a memo earlier this week signaling his intent to issue the order.

The seldom-used public health code was enacted by the Trump administration at the start of the pandemic and continued under Biden. Migrants who would have been allowed to seek asylum after the end of Title 42 on May 23 will continue being expeditiously removed to other countries for now. The restraining order prevents any action by DHS, such as processing migrants under immigration law instead of Title 42, before the next court hearing scheduled for May 13.

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The Justice Department, which opposed the restraining order, has not published a response. Texas filed a separate case also seeking to block the end of Title 42, but has not received a ruling.

Summerhays, a Trump appointee, granted the motion on Monday in a lawsuit filed against the Biden Administration by Louisiana, Missouri and Arizona that now includes 21 Republican-led states. The suit argued that lifting the pandemic health recommendation would result in an “unprecedented crisis at the United States southern border”.

But on April 1, the Centers for Disease Control and Prevention (CDC) withdrew their recommendation to The Department of Homeland Security (DHS) to carry out removals under the authority of U.S. Health Code Title 42, calling the measure “no longer necessary” after review.

Texas Public Radio is supported by contributors to the Border and Immigration News Desk, including the Catena Foundation and Texas Mutual Insurance Company.

Immigration rights advocates have also said Title 42, as a public health measure, cannot serve in place of immigration laws.

“The entire concept of an expulsion under Title 42 was invented two years ago when the policy was put into place,” said Aaron Reichlin-Melnick, Senior Policy Counsel at American Immigration Council. “Title 42 is not an immigration law. It is a raw exercise of public health power to take a person who is inside the United States and send them to another country.”

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However, attorneys representing the states in the suit saw the move as an increase in security on the U.S.-Mexico border and celebrated the decision.

"We applaud the Court for approving our request for a Temporary Restraining Order to keep Title 42 in place," said Arizona Attorney General Mark Brnovich in a release. "The Biden administration cannot continue in flagrant disregard for existing laws and required administrative procedures."

A similar lawsuit filed by Texas in 2021 reestablished another hardline Trump-era policy — “Remain in Mexico” — through a similar temporary ruling that made its way through the conservative U.S. Fifth Circuit Court of Appeals and the U.S. Supreme Court.

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Pablo De La Rosa is a freelance journalist reporting statewide with Texas Public Radio and nationally with NPR from the Texas-Mexico border in the Rio Grande Valley, from where he originates. He’s the host of the daily Spanish-language newscast TPR Noticias Al Día.