Title 42: Judge orders Biden administration to stop expelling families that cross the border to seek asylum

• Title 42 refers to a public health order from the US Centers for Disease Control and Prevention.
• Issued in March 2020, it effectively closed the US border to people seeking asylum.
• Critics have argued it violates the internationally recognized right to apply for refuge.
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A US federal judge on Thursday gave the federal government two weeks to stop summarily expelling families with children who cross the border to seek asylum.

Under what is known as Title 42, the United States, beginning under former President Donald Trump, has been denying the vast majority of border-crossers during the pandemic the right to even apply for refuge. The Biden administration has made exceptions for child asylum-seekers but, to the dismay of progressive critics, has otherwise continued the policy.

The legal rationale has been COVID-19, with successive administrations citing the authority of the US Centers for Disease Control and Prevention to take steps to protect public health.

But in Thursday's ruling, US District Judge Emmet G. Sullivan said that authority did not permit the extraordinary step of effectively closing the border to the majority of people seeking to exercise their right, enshrined in international law, to even apply for asylum. That policy is "likely unlawful," he wrote, issuing a preliminary injunction on the basis that plaintiffs - a group of migrant families assisted by the ACLU and other groups who renewed their legal battle over Title 42 after the policy was formally extended in July - stood a good chance of prevailing at trial.

In a statement, Omar Jadwat, director of the ACLU's Immigrants' Rights Project, hailed the decision.

"President Biden should have ended this cruel and lawless policy long ago," he said, "and the court was correct to reject it today."

Although not final, the ruling was a comprehensive rejection of the government's arguments that Title 42 is necessary to minimize exposure to COVID-19, a claim that has also been made by the Biden administration's right-wing opponents. Even quickly expelling asylum-seekers requires, in many cases, putting families on crowded planes and buses.

Nowadays, especially, with "the wide availability of testing, vaccines, and other minimization measures," Sullivan said he was "not convinced that the transmission of COVID-19 during border processing cannot be significantly mitigated."

The government has already demonstrated it can do so with its processing of unaccompanied minors. And, indeed, throughout the pandemic employees with US Customs and Border Protection appear to have had a lower incidence of COVID-19 than the general US population; despite attempts by some politicians to blame migrants for bringing the coronavirus to the US, evidence suggests migrants stand a greater chance of contracting COVID-19 after they cross the border.

The court also rejected the government's claim that doing away with Title 42 would result in a surge of people crossing the border. In fact, Sullivan wrote, the "historic" numbers of border crossers cited by the administration and its critics alike is inflated by the policy, as "individuals seeking an asylum hearing have attempted to cross the border multiple times" - and each time (10 or more instances for some) is counted as a new encounter. Already, largely due to the refusal of some Mexican states to accept minors expelled from the US, the Biden administration processes 86% of families with children through traditional removal proceedings, he noted.

It is unclear if the Biden administration will fight the ruling. The Department of Justice did not immediately respond to a request for comment.

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