Biden’s Options on Title 42 Limited After Court Ruling

After experiencing yet another courtroom setback, the Biden administration is appealing and weighing options for the future of Title 42, the COVID-19-related policy of turning away unauthorized migrants at the southern border.

A federal judge temporarily halted President Joe Biden‘s plans to end the pandemic health policy Monday. The White House says it will appeal but is not seeking a stay, meaning Title 42 will remain in place for now.

FEDERAL JUDGE STOPS BIDEN FROM ENDING TITLE 42 BORDER POLICY

“The administration disagrees with the court’s ruling, and the Department of Justice has announced that it will appeal this decision,” White House press secretary Karine Jean-Pierre said in a statement. “The authority to set public health policy nationally should rest with the Centers for Disease Control, not with a single district court.”

U.S. District Judge Robert Summerhays of the Western District of Louisiana on Friday afternoon blocked the U.S. government from ending the Title 42 policy, forcing U.S. border officials to continue turning most illegal migrants back to Mexico rather than taking them into custody.

Jean-Pierre did not elaborate when asked by a reporter Sunday why the administration isn’t seeking a stay, which would remove Title 42 while the legal process played out. The White House did not respond to a request for comment from the Washington Examiner.

Friday’s injunction came in response to a suit filed by the states of Arizona, Louisiana, and Missouri, which claimed that the government had failed to plan for handling the anticipated surge in noncitizens expected to cross when Title 42, promulgated by the Centers for Disease Control and Prevention, goes away and that the influx of releases would harm states. A total of 24 states are listed as plaintiffs.

According to Stephen Yale-Loehr, professor of immigration law practice at Cornell Law School, the Biden administration has three options going forward. It can appeal to the 5th U.S. Circuit Court of Appeals, start the rule-making process and ask for public comment on terminating Title 42, or give up and keep the measure in place.

Since the White House has already said it will appeal, that process will play out over the course of several months, leaving Title 42 effectively in place for the foreseeable future. Yale-Loehr said the decision not to seek a stay may have boiled down to practical reasons.

“I suspect the reason is that it is very hard to win an emergency stay,” he said.

Despite its efforts to end the measure, behind closed doors, the Biden administration has been concerned that walking back Title 42 could prompt a “mass migration event.”

When Title 42 does end, the Biden administration has said it will begin using Title 8 instead.

The two measures are similar, with Title 8 being somewhat more lenient. Title 42 allows immediate expulsion of certain migrants without a hearing, according to Yale-Loehr. In contrast, Title 8 requires officials to first interview migrants to see if they have a credible fear of persecution. If not, they can be deported, and if so, the migrant is allowed to stay in the United States to argue why they qualify for asylum.

Many of the arguments for ending Title 42 focus on asylum-seekers.

“The reality is that the policy prevents vulnerable asylum-seekers and migrants from exercising their rights to make their claims for asylum — and not lifting has grave humanitarian consequences,” Claudia Flores, associate director for the Immigration Policy Program at the Center for American Progress, previously told the Washington Examiner. “Democrats should continue to focus on making a strong case for reforming the immigration system in a way that best reflects American values and needs.”

Arguments in favor of keeping Title 42 tend to focus on criminal activity such as illegal drugs flowing across the border, the steadily rising number of migrant encounters, and a wave of new immigrants that could arrive when the policy ends. A group of House Republicans recently took a trip to the border to make their case for keeping Title 42.

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Friday’s ruling is one of many that have ended or curtailed the Biden administration’s plans, particularly those related to the pandemic. Courts have previously ruled against Biden over issues ranging from the CDC’s eviction moratorium to the federal mask and vaccine mandates.