WASHINGTON – The White House said Wednesday it plans to ask a federal court to reverse a judge who ordered an end to the Trump-era Title 42 health policy in place for migrants attempting to cross the southern border.
The Department of Homeland Security said it would ask the US Court of Appeals for the District of Columbia for a stay of a Nov. 15 ruling by Senior US District Judge Emmet Sullivan voiding the policy as “arbitrary and capricious.”
Title 42, which was implemented by the Trump administration at the onset of the COVID-19 pandemic in March 2020, allowed border agents to kick migrants back across the border for public health reasons without first hearing their asylum claims.
The Biden administration pushed for months to end the policy, only to have its initial winding-up order blocked by a Louisiana federal judge in May of this year following a lawsuit by 24 Republican state attorneys general who warned lifting Title 42 could spawn a surge of migrants that would overwhelm immigration resources.
In response to a separate lawsuit brought by the American Civil Liberties Union on behalf of a group of asylum-seekers, Sullivan gave the Biden administration until Dec. 21 to bring Title 42 to an end, writing that he did so only “WITH GREAT RELUCTANCE.”
In its filing, the Biden administration said it wanted the appeal of Sullivan’s order suspended pending the New Orleans-based Fifth Circuit Court of Appeals’ ruling on the May Louisiana decision and while the Centers for Disease Control and Prevention drew up a replacement policy.
“If the government prevails in the Louisiana litigation … Plaintiffs’ challenges to the Title 42 orders will be moot,” the filing read.
The Biden administration added that it disagreed with Sullivan’s decision and insisted the “CDC’s Title 42 Orders were lawful … and that this Court erred in vacating those agency actions.”
The filing also indicated that the Department of Health and Human Services and the CDC intend “to undertake a new rulemaking to reconsider the framework under which the CDC Director may exercise her authority … to respond to dangers posed by future communicable diseases.”
But the CDC in April found that Title 42 was no longer necessary due to the waning pandemic.
“Based on the public health landscape, the current status of the COVID-19 pandemic, and the procedures in place for the processing of covered noncitizens … CDC has determined that a suspension of the right to introduce such covered noncitizens is no longer necessary,” the agency said at the time.
Title 42 has been used to expel migrants more than 2.4 million times since March 2020.
The ban has been unevenly enforced by nationality, falling largely on migrants from Guatemala, Honduras, El Salvador — as well as Mexicans — because Mexico allows them to be returned from the United States. Last month, Mexico began accepting Venezuelans who are expelled from the United States under Title 42, causing a sharp drop in Venezuelans seeking asylum at the US border.
The asylum rule has been used by the Biden administration to expel migrant families and single adults, though not children traveling alone.
With Post wires