Skip to content

Court throws out pandemic-era border expulsion policy

Biden administration asks judge to pause order until Dec. 21 to address resource and logistical issues of ending the Title 42 directive

Immigration activists demonstrate in front of the Supreme Court in Washington in April, when the justices heard oral arguments about another Trump-era border policy.
Immigration activists demonstrate in front of the Supreme Court in Washington in April, when the justices heard oral arguments about another Trump-era border policy. (Bill Clark/CQ Roll Call)

A federal judge in Washington struck down a pandemic-related border directive known as Title 42 on Tuesday and ordered the Biden administration to no longer turn away migrants seeking protection at the nation’s borders.

Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia vacated the directive, which has allowed border agents to expel millions of migrants without allowing them to seek asylum since it was issued in March 2020 as a response to the COVID-19 pandemic.

In an order that blocks the policy, the judge reasoned that the Centers for Disease Control and Prevention did not fully consider how the policy would harm migrants seeking protection at the U.S. border, as the agency is required by law to do when issuing directives.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor,” Sullivan wrote.

Sullivan, a Clinton appointee, said it is “undisputed that the impact on migrants was indeed dire.” He also determined that the policy “does not rationally serve its stated purpose in view of the alternatives.”

Hours after Sullivan’s order, the Biden administration asked the court to pause the effect of the ruling for five weeks, until Dec 21, to give the government time to reinstate full asylum procedures at the border.

The government cited “the need to resolve resource and logistical issues that it was unable to address in advance.”

“This transition period is critical to ensuring that DHS can continue to carry out its mission to secure the Nation’s borders and to conduct its border operations in an orderly fashion,” the government wrote.

The American Civil Liberties Union, which had challenged the policy, did not oppose the government’s request to delay the ruling’s effect.

Fallout from the ruling is likely to ripple through Capitol Hill, where Republican lawmakers have bashed the Biden administration for its handling of high migration levels at the U.S.-Mexico border.

When the administration attempted to end the Title 42 policy earlier this year, even some Democratic senators raised concerns publicly that the administration had not properly planned for the restrictions to be lifted. The debate over the Title 42 directive stalled a separate COVID-19 aid package earlier this year.

The lawsuit isn’t the only court fight over the future of the Title 42 policy. Republican state officials sued to challenge the Biden administration’s attempt to end the directive. In May, a Louisiana federal judge halted those plans and ordered the administration to keep the Title 42 directive in place while litigation continued. The administration’s appeal of that ruling is currently pending before the U.S. Court of Appeals for the 5th Circuit.

Struck down

In the Washington case, Sullivan wrote Tuesday that the CDC could have considered less restrictive options than the Title 42 directive and quarantined migrants at the border instead of expelling them to prevent the spread of COVID-19.

Furthermore, the government failed to prove that migrants are responsible for spreading COVID-19 in the United States, the judge said, noting that cross-border travel has largely continued during the pandemic.

The decision delivers a victory to immigrant advocates fighting the Title 42 policy in court on behalf of migrant families, who have long argued that the directive does little to stem the spread of COVID-19 and flouts the U.S.’s asylum obligations.

Lee Gelernt of the ACLU, the lead attorney representing the families in the case, said through a spokesperson that Sullivan’s ruling “puts an end to a policy that misused the public laws as a pretext to abandon our commitment to provide a hearing to those fleeing danger.”

Last month, a House panel published a report revealing that the Title 42 policy was drafted and implemented without input from the CDC’s public health experts. Dr. Martin Cetron, director of the CDC’s division of global migration and quarantine, told lawmakers that the Title 42 order was “not drafted by me or my team,” but rather was “handed to us.”

The ruling also arrives just days after former Tucson, Ariz., Police Chief Chris Magnus resigned as Customs and Border Protection commissioner, following reports of internal conflict and amid record-high levels of migration.

Border agents logged more than 2.3 million encounters with migrants at the border in fiscal 2022, marking the busiest year at the U.S.-Mexico border in recorded history.

Litigation history

Tuesday’s decision marks the second time Sullivan has ruled against the Title 42 policy in this case.

Last year, the judge found that the government does not have the authority to expel migrants under the directive because the public health law behind it only allows the government to “prohibit … the introduction of” people to the country, not expel those who have already entered.

But the D.C. Circuit partly reversed Sullivan’s ruling. In March, a three-judge panel for the appeals court concluded that the government may expel migrant families under the Title 42 policy but cannot send them to countries where they would likely be persecuted or tortured.

The appeals court also sent the case back to Sullivan’s court to consider further arguments and issue a final decision in the case.

Shortly after the appeals court’s ruling, the CDC announced it would terminate the policy voluntarily after concluding that current health conditions no longer mandated the restrictions, paving the way for another court battle.

Recent Stories

Alabama showdown looms between Carl and Moore

Supreme Court grapples with state social media content laws

Data suggests Biden or Trump may struggle with Congress in second term

State of suspension: Lawmakers gripe about fast-tracked bills under Johnson

Health package talks break down amid broader spending feud

Capitol Lens | A Dunn deal