U.S. Supreme Court allows rapid removal of migrants to continue as legal challenge plays out

Hundreds of migrants wait in line along the banks of the Rio Grande to seek asylum in the U.S. on Dec. 12. (Credit: Ivan Pierre Aguirre for The Texas Tribune)

The U.S. Supreme Court’s chief justice on Monday paused the scheduled 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.

Justice John G. Roberts’ order comes after an Arizona-led coalition of 19 states, including Texas, asked the Supreme Court on Monday to halt the lifting of the health order known as Title 42, which was set to expire this Wednesday.

It’s unclear how long the temporary pause will last, but in his order, Roberts gave the Biden administration until 4 p.m. Central time Tuesday to respond.

The U.S. Department of Homeland Security said in a statement that the administration will continue to apply Title 42 as required by the Supreme Court, “and individuals who attempt to enter the United States unlawfully will continue to be expelled to Mexico.”

“While this stage of the litigation proceeds, we will continue our preparations to manage the border in a safe, orderly, and humane way when the Title 42 public health order lifts,” the statement said.

A migrant family holds hands after crossing the Rio Grande into El Paso from Ciudad Juárez on Monday. (Credit: Ivan Pierre Aguirre for The Texas Tribune)

A Customs and Border Protection officer loads migrants into a van after crossing the Rio Grande into El Paso from Ciudad Juárez on Monday. (Credit: Ivan Pierre Aguirre for The Texas Tribune)

A migrant family inside a CBP van after crossing the Rio Grande into El Paso from Ciudad Juárez on Monday, Dec. 19, 2022. (Credit: Ivan Pierre Aguirre for The Texas Tribune)

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.

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.

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 coalition of states then asked the appeals court to temporarily halt the lifting of Title 42. On Friday, the appeals court denied the states’ request.

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.

Gov. Greg Abbott, who has been critical of President Joe Biden’s immigration and border policies, said in a tweet, “Texas and other states are insisting that the Court leave Title 42 in place. Today’s order is a step in that direction.”

In El Paso, which has seen a big rise in migrant crossings recently, officials said Monday that they will continue with their preparations as if Title 42 is still being lifted on Wednesday.

“We want to make sure we’re prepared,” El Paso Mayor Oscar Leeser said at a press conference. He added that there could be about 20,000 migrants waiting to cross the border into El Paso, based on discussions with Mexican partners and Border Patrol agents.

Leeser declared a state of emergency on Saturday to expand shelter space and mobilize resources for migrants amid frigid temperatures. City and county officials are also coordinating with the American Red Cross to plan an emergency operation that could potentially shelter up to 10,000 people until late January, U.S. Rep. Veronica Escobar, D-El Paso, said in a press release Sunday.

Another federal court also weighed in on Title 42 after the Biden administration announced earlier this year that it planned to end it in May.

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, but dropped its lawsuit and joined the other state’s suit.

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.