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US to appeal ruling that struck down pandemic-era border policy

But the Justice Department does not appear to seek to delay an order that would end Title 42 by Dec. 21

A city worker works outside a migrant shelter on December 3 in Reynosa, Mexico. Thousands of immigrants are waiting on the Mexican side of the border to see if the Title 42 directive, a U.S. public health order used to expel migrants seeking asylum, is lifted on December 21, as ordered by a federal judge. U.S. border officials predict a migrant surge at the border if the pandemic-era regulation is lifted.
A city worker works outside a migrant shelter on December 3 in Reynosa, Mexico. Thousands of immigrants are waiting on the Mexican side of the border to see if the Title 42 directive, a U.S. public health order used to expel migrants seeking asylum, is lifted on December 21, as ordered by a federal judge. U.S. border officials predict a migrant surge at the border if the pandemic-era regulation is lifted. (John Moore/Getty Images)

The Biden administration told a Washington federal court Wednesday that it will appeal a ruling that struck down pandemic-related asylum restrictions known as Title 42.

The government, in a move that underscores the complicated legal and political currents of U.S-Mexico border policy, also said it will seek to delay that appeal while a separate lawsuit over the so-called Title 42 policy plays out.

But the Justice Department does not appear to be asking to pause the ruling that directed the government to end the Title 42 policy by Dec. 21.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia ruled against the Title 42 directive in November, finding the policy was arbitrary and the government had not considered its harms to migrants.

Wednesday’s filing from the Justice Department follows speculation that the government would not appeal the ruling, since the administration had previously tried to lift the border restrictions on its own.

The administration initially asked for a five-week delay while it prepared to implement the ruling, and last week said it was still deciding whether to appeal.

The border policy, which was issued by the Centers for Disease Control and Prevention, has allowed agents to turn back asylum-seekers for more than two years.

The Justice Department in the filing Wednesday said that it “will be filing a notice of appeal forthwith” to the U.S. Court of Appeals for the District of Columbia Circuit, as well as issuing a regulation to address some of the issues Sullivan had with the initial Title 42 order. That notice to appeal was filed several minutes later.

The lawyers added that the government “respectfully disagrees with this Court’s decision” and would argue on appeal that the Title 42 order is “valid” and that Sullivan was wrong to strike it down — essentially in an effort to preserve the CDC’s authorities at the border.

However, the government will seek to delay its own appeal as it prepares to lift the Title 42 policy later this month. According to the DOJ filing, the government plans to ask the D.C. Circuit to table their appeal while another appeals court considers a related case.

That other case, pending before the U.S. Court of Appeals for the 5th Circuit, was launched by a group of Republican-led states against the Biden administration’s earlier memo terminating the Title 42 policy. A Louisiana federal judge ruled earlier this year that the administration could not lift the policy, a decision the administration has appealed.

If the government wins its 5th Circuit appeal, its memo lifting the Title 42 policy will go back into effect, and the D.C. Circuit case “will be moot,” the DOJ said.

The government will also develop a new regulation clarifying the CDC’s authority to expel migrants during public health crises, which could also moot the D.C. challenge, the court filing says.

Lee Gelert of the American Civil Liberties Union, a lead attorney for the migrant families in the case, said they are “not surprised by the decision to appeal given the Biden administration’s vigorous legal defense of Title 42 over the past two years.”

The government’s decision to appeal comes as a group of Republican-led states asked the court for permission to defend the Title 42 policy in the Biden administration’s stead. Sullivan has yet to rule on that request.

The impending end to the Title 42 policy this month has reverberated across the Capitol, where lawmakers are engaged in last-ditch negotiations to strike a deal that would protect certain undocumented immigrants in exchange for heightened border security.

A bipartisan framework currently circulating has proposed extending the Title 42 order via legislation, while also creating a path to citizenship for 2 million undocumented immigrants brought to the country as children.

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