The Biden administration plans to appeal the ruling voiding the Title 42 border restriction, but will not seek to delay its termination


Washington – The Biden administration will appeal a court decision that voided a public health order that U.S. border officials used to expel migrants en masse from the U.S.-Mexico border during the coronavirus pandemic, the Justice Department announced Wednesday.

In a filing with federal district court in Washington, DC, the Justice Department said the government decided to appeal a ruling last month that required the government to stop enforcing the pandemic-era border restriction known as Title 42the section of the United States Code that contains public health laws.

“The government respectfully disagrees with this court’s decision and would argue on appeal, as it argued in this court, that the CDC’s Title 42 decisions are lawful,” the Justice Department said in its filing with the US Circuit Judge. District Court, Emmet Sullivan, who last month declared this Trump-era policy unlawful.

Sullivan later gave the government several weeks until December 21 to halt the evictions and complete his mandate.

While it announced an appeal, the Justice Department did not request that Sullivan’s sentence be stayed and said it will seek to stay the case while it decides a separate appeal of another court order that blocked Title 42’s termination this spring , and while the government is issuing a new regulation that will regulate the legal power to expel migrants on public health grounds.

If the government wins the other Title 42 case, stemming from a decision by a federal judge in Louisiana, the Washington, DC case would be “contentious,” the Justice Department argued. A Justice Department spokesman declined to elaborate on the filing Wednesday.

A Biden administration official said the Justice Department has not asked federal courts to keep Title 42. Instead, the official said, the government is defending the authority behind the evictions. The Department of Homeland Security “continues to move forward at full speed to repeal Title 42 on December 21,” the official added.

However, the termination date on December 21 could still be postponed. More than a dozen Republican-led states are asking Sullivan has urged that Title 42 be defended in court and has signaled they will seek a stay of his decision, which would delay the termination of the policy. If Sullivan denies the states’ request, they could ask the DC Court of Appeals and the Supreme Court to intervene.

Immigrant crossings into the US hit a new record high
Immigrants seeking asylum in the United States are processed by US Border Patrol agents after entering Arizona from Mexico on September 26, 2022 near Yuma, Arizona.

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Since March 2020, when the Trump administration first invoked Title 42, the US has implemented over 2.4 million migrant expulsions along its southern border under the policy, which the Centers for Disease Control and Prevention as a measure to contain the spread of COVID -19, despite internal opposition.

Sullivan’s ruling last month followed a lawsuit filed by the American Civil Liberties Union (ACLU), which has argued that Title 42 is an illegal policy that violates the rights of Asylum seekers.

The Justice Department’s decision to appeal the ruling without attempting to interrupt it is the latest twist in a year-long legal battle over the fate of Title 42.

To the dismay of progressive asylum-seeker advocates, the Biden administration vigorously defended Title 42 for over a year, including in federal courts, arguing that the policy was necessary to reduce coronavirus outbreaks along the southern border amid unprecedented numbers of migrant arrivals.

Then, in April of this year, the CDC announced it would stop approving Title 42, citing improving pandemic conditions, including increased vaccination rates in the migrants’ home countries. But a coalition of Republican-led states filed a lawsuit challenging the termination, convincing a federal judge to block it on procedural grounds.

The Biden administration subsequently continued to rely on Title 42 to handle record-breaking migration flows along the southern border, leading in fiscal 2022, a 12-month span ending on Oct. 30, government statistics show.

Shortly after Sullivan declared Title 42 illegal last month, the Biden administration asked him to give border officials five weeks to comply with his decision. Sullivan agreed to the break, albeit with “great reluctance,” saying he did so because it was not a motion to stay his decision pending an appeal.

Once Title 42 ends, the US must consider the cases of all migrants who say they fear persecution or torture if deported, as required by US asylum law.

The Biden administration has said it will bring agents and resources to the southern border and increase regular deportations, but Republicans and some moderate Democrats have expressed concern about the administration’s ability to handle an even larger surge in migrant arrivals.

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