Federal Judge Blocks Title 42

Yesterday, Federal Judge Emmet Sullivan blocked Title 42, a policy implemented by the Trump Administration during the COVID-19 pandemic and later used by the Biden Administration as part of its response to the Venezuelan migrant crisis.

The Trump Administration first imposed Title 42 in 2020; the old public health statue allowed border agents to block all asylum processing in order to prevent the spread of COVID-19. The Biden Administration continued to use Title 42 until April 2022, when it announced plans to end the policy in response to improved COVID-19 vaccination and treatment rates. However, in May 2022, a lawsuit barred the Biden Administration from ending the policy, and in June 2022, multiple members of Congress introduced legislation to make Title 42 a permanent means of border management. In October 2022, as part of its Venezuelan Parole Program, the Biden Administration announced an expansion of Title 42, which, through a deal with the Mexican government, allowed U.S. border patrol to expel without option for asylum any Venezuelan migrant who crossed the U.S.-Mexico border instead of flying into the U.S. to meet a pre-determined sponsor.

In response to an injunction request from the ACLU, District Judge Emmet Sullivan blocked Title 42 yesterday, finding it "arbitrary and capricious in violation of the Administrative Procedure Act." Sullivan criticized the CDC for disregarding the harmful effects of the policy and for failing to promptly reevaluate the policy when vaccination and treatment rates increased. Following the injunction, the Biden Administration requested a five-week stay on the ruling, buying time to prepare for renewed asylum proceedings. Sullivan granted this stay with "great reluctance."

Since its introduction in 2020, Title 42 has been criticized by immigration and human rights activists for violating U.S. and international refugee laws and for increasing overall border crossings. From its implementation during the pandemic through October 2021, under Title 42:

  • almost 50% of the 1.8 million expulsions were of the same people being expelled back to Mexico multiple times
  • 50% of all single migrants from Mexico, Guatemala, Honduras, and El Salvador who were expelled to Mexico were expelled after crossing the border again

Moreover, while the CDC claimed that Title 42 was a necessary public health measure, public reports indicate that the policy began in the U.S. Department of Homeland Security and that many CDC scientists opposed the policy.

For More Information:

Read Human Rights First's report "The Nightmare Continues: Title 42 Court Order Prolongs Human Rights Abuses, Extends Disorder at U.S. Borders" here

Read CNN reports on the injunction here

This blog post does not serve as legal advice and does not establish any client-attorney privilege. Do not take any action based on the information contained in this post without consulting a qualified immigration attorney. If you have any questions, please do not hesitate to contact our legal team directly.

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