Judge halts winding down of Title 42 border expulsion policy

States could incur more costs if migrants are allowed into the country, including for health care and education, order finds

Rep. Tony Gonzales, R-Texas, center, and House Minority Leader Kevin McCarthy, R-Calif., ride a U.S. Border Patrol air boat as Republicans toured the U.S.-Mexico border on Monday in Eagle Pass, Texas, and spoke against plans to lift a border policy known as Title 42. (Jabin Botsford/The Washington Post via Getty Images)
Rep. Tony Gonzales, R-Texas, center, and House Minority Leader Kevin McCarthy, R-Calif., ride a U.S. Border Patrol air boat as Republicans toured the U.S.-Mexico border on Monday in Eagle Pass, Texas, and spoke against plans to lift a border policy known as Title 42. (Jabin Botsford/The Washington Post via Getty Images)
Posted April 27, 2022 at 7:00pm

The Department of Homeland Security may not begin phasing out its use of pandemic-related asylum restrictions before their planned end next month, a federal judge ordered Wednesday.

Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana had indicated Monday that he planned to file such an order, which comes as part of the broader legal challenge filed by 21 Republican-led states.

Summerhays, in a four-page order, found the states faced a “substantial threat of immediate and irreparable injury resulting from the early implementation” of the administration’s plans to fully end the border public health directive, known as Title 42.

The judge cited the costs the states could incur if more migrants are allowed into the country, including health care and education expenses for those migrants.

The Biden administration has announced plans to rescind Title 42, which allows border agents to rapidly “expel” migrants who cross the border without considering their asylum claims, on May 23.

But ahead of the planned rescission, DHS began processing more migrants under fast-tracked deportation proceedings, prompting the states to ask the court to intervene.

Summerhays in the order wrote that DHS could not scale back its use of Title 42 ahead of the official termination date. The order would not, however, stop DHS from allowing some migrants to seek asylum in the U.S. on a “case-by-case” basis, the judge said.

The department may also “engage in targeted use” of fast-tracked deportation proceedings to formally remove certain migrants who have repeatedly crossed the border, even if it means fewer migrants are expelled than before, Summerhays wrote.

The states had 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.

The order is set to expire after 14 days, unless shortened or extended by the court. It stems from litigation brought earlier this month from the states that challenges the Biden administration’s plans to rescind Title 42 after more than two years in effect.

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.

Summerhays signaled in the Wednesday order he was likely to rule in favor of the states in the broader suit and block DHS from ultimately terminating the border expulsion directive on May 23 as planned.

The judge found the states had proved they were likely to prevail on their claims that the Centers for Disease Control and Prevention did not follow the proper steps when it issued its memo terminating Title 42.