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Federal judge signals plans to halt winding down of Title 42

Officials from Republican-led states cheered a forthcoming court order on the pandemic-related border policy

Asylum-seekers are processed by border patrol, near the U.S.-Mexico border wall in Yuma, Ariz., in February.
Asylum-seekers are processed by border patrol, near the U.S.-Mexico border wall in Yuma, Ariz., in February. (Katie McTiernan/Anadolu Agency via Getty Images)

A federal judge indicated Monday he intends to block the Biden administration from winding down pandemic-related asylum restrictions ahead of their planned end next month, delivering an early blow to immigrant advocates who have pushed to end the policy.

Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana announced his plan to grant a request by Republican-led states to preserve for now the border directive, known as Title 42, during a closed status conference Monday, according to a memo filed in the case.

The full contours of Summerhays’ forthcoming order are unclear. Attorneys for the states and for the federal government “will confer regarding the specific terms to be contained” in the court’s temporary restraining order “and attempt to reach agreement,” the court filing says.

Such a ruling likely is a bad sign for the Biden administration in a broader legal challenge to stop government plans to fully end Title 42 on May 23. More than 20 Republican-led states filed a lawsuit over those plans, and then sought this order when they learned the Biden administration began to scale back the use of Title 42 ahead of that date.

The attorneys general behind the lawsuit challenging the planned rescission of Title 42 quickly declared victory on Twitter following the judge’s announcement.

“TRO GRANTED!” tweeted Louisiana Attorney General Jeff Landry, using an acronym for the states’ requested temporary restraining order. “Biden’s plan to rescind Title 42 has been halted.”

Missouri Attorney General Eric Schmitt called the incoming ruling on Twitter “a huge victory for border security.”

Arizona Attorney General Mark Brnovich added in a tweet that his office “will continue to fight the Biden administration’s open border policies.”

A Justice Department spokesperson didn’t immediately return a request for comment late Monday.

Court wrangling

The contested policy, in place since March 2020, has allowed border officers to quickly turn away asylum-seekers who crossed the U.S.-Mexico border without considering their claims for protection.

The lawsuit was already on schedule for an initial decision on a separate request to stop the rescission of Title 42 before May 23. The Republican officials argue the administration did not follow the correct steps to rescind the policy as required by administrative law.

The states asked the court for an emergency order that would bar the administration from starting to lift Title 42 and require border agents to continue expelling migrants from El Salvador, Guatemala and Honduras, the three countries that comprise the Northern Triangle region.

Such an order would expire after 14 days unless extended by the court, the states proposed.

Federal government lawyers confirmed border agents were allowing more migrants to seek asylum in the U.S. in anticipation of the eventual rescission of Title 42, but said in court papers the number of migrants from the Northern Triangle allowed through the regular asylum process still “remains relatively small.”

The White House has stood by plans to rescind Title 42 on May 23 despite growing concerns from congressional lawmakers on both sides of the aisle about the Department of Homeland Security’s preparedness for a potential increase in migration after the border controls are lifted.

Republicans have blasted the administration for easing the border controls while migration levels remain high. Even a number of Senate Democrats, including several facing tough midterm battles this fall, have raised concerns about the administration’s planning for a migration influx.

Earlier on Monday, shortly before the court ruling was made public, White House Press Secretary Jen Psaki told reporters the administration is “continuing to prepare for May 23″ and that Homeland Security Secretary Alejandro Mayorkas has been leading a “multipart strategy” over the past few months to prepare.

Psaki has also maintained the policy “is not an immigration policy or an immigration authority,” instead calling it a health directive that is determined by the Centers for Disease Control and Prevention. She said the CDC decided Title 42 was no longer needed “based on data and science.”

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