Federal health order allowing rapid removal of migrants must end Wednesday, court rules

Migrants are picked up by Border Patrol after hundreds of people crossed the Rio Grande to seek asylum in the U.S. last week. (Credit: Ivan Pierre Aguirre for The Texas Tribune)

A federal appeals court denied a request Friday from Republican-led states to delay the lifting of an emergency health order the federal government has used for more than two years to quickly turn away migrants, including those seeking asylum, at the southwest border.

The U.S. Court of Appeals in Washington, D.C., denied a request from 19 Republican-led states, including Texas, that had asked the three-judge panel to delay lifting the order — known as Title 42 — on Dec. 21. The judges said the states’ request came too late in the process. The states could appeal to the U.S. Supreme Court.

Last month, Judge Emmet Sullivan of the U.S. District Court in Washington, D.C., ruled that the Centers for Disease Control and Prevention’s use of the order to prevent people from accessing the asylum process is “arbitrary and capricious” and a violation of the law because it was not implemented properly. Sullivan ordered the Biden administration to immediately lift Title 42, then later agreed to give the federal government until Dec. 21 so it could make preparations.

The Biden administration said it would meet the Dec. 21 deadline, but it also appealed Sullivan’s ruling, saying it disagreed that Title 42’s initial implementation was illegal.

The CDC under the Trump administration invoked Title 42 in March 2020 — at the beginning of the coronavirus pandemic in the U.S. — for the first time since its creation in 1944 and said it was a necessary step to help stop the spread of COVID-19 in immigrant detention centers, where many migrants are placed after they arrive at the U.S.-Mexico border. Dr. Anthony Fauci, the nation’s top infectious disease expert, has since said that immigrants are not driving up the number of COVID-19 cases.

Immigration officials have used the health order more than 2 million times to expel migrants, many of whom have been removed multiple times after making repeated attempts to enter the U.S. Under Title 42, the recidivism rate — the percentage of people apprehended more than once by a Border Patrol agent — has increased from 7% to 27% since fiscal year 2019.

Sullivan’s ruling stems from a lawsuit filed in January 2021 by the American Civil Liberties Union and two Texas-based immigrant rights groups that argued Title 42 violated U.S. asylum laws and that the Trump administration used the pandemic as a pretext to invoke Title 42 and use it as an immigration tool.

Initially, the Biden administration had planned to lift Title 42 in May.

But when the CDC announced that it was letting the health order expire, Arizona and more than a dozen other states filed a federal lawsuit on April 3 in the Western District of Louisiana, asking a judge to stop the government from lifting Title 42. Texas filed a separate lawsuit on April 22 seeking the same thing.

In May, U.S. District Judge Robert R. Summerhays in Louisiana blocked the Biden administration from ending Title 42. The administration appealed, and that case remains pending in the 5th U.S. Circuit Court of Appeals.