Title 42: The Biden administration wants the Supreme Court to allow Trump-era policies restricting migrants to end — but not for at least a week


The Biden administration told the Supreme Court on Tuesday that judges should reject an emergency bid by a group of GOP-led states to keep the controversial Trump-era border restriction, known as Title 42, in place amid legal challenges occur.

But it also asked the court to delay the end of Title 42 until at least December 27, citing ongoing preparations for an influx of migrants and the upcoming bank holiday weekend.

The government said the states, led by Arizona, do not have the legal right to appeal a federal district court decision that vacated the program and ordered its termination by Wednesday.

Chief Justice John Roberts temporarily froze that deadline Monday, urging parties to the lawsuit, the Justice Department and the American Civil Liberties Union, to intervene.

Until the Supreme Court issues an order — which can be issued at any time, although the court has no time limit — the authority remains in place.

Since March 2020, Title 42 has allowed U.S. border officials to immediately turn away migrants who illegally crossed the southern border, all in the name of Covid-19 prevention. There have been nearly 2.5 million expulsions – mostly under the Biden administration, which has braced for an influx of comers when authority is lifted.

The last-minute legal tussle comes as federal officials and border communities braced themselves for an expected surge in migrant arrivals as early as this week, as the issue of immigration continues to ignite both sides of the political divide. The Department of Homeland Security has laid out a plan for the end of the program that includes deploying resources at the border, targeting smugglers, and working with international partners.

In court filings Tuesday, Attorney General Elizabeth Prelogar stressed that it would be highly unusual for the court to allow states to intervene at the last minute if they were not an official party to the dispute at hand.

“The Government recognizes that the end of Title 42 regulations is likely to result in disruption and a temporary increase in illegal border crossings,” Prelogar wrote.

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A large group of migrants crosses El Paso

“The government is in no way trying to downplay the seriousness of this problem. But the solution to this immigration problem cannot be to prolong indefinitely a public health measure that everyone now acknowledges has outlived its public health justification,” she wrote.

Attorneys for the ACLU, representing families subject to Title 42, also urged the judges to dismiss the states’ appeal.

“The records in this case document the truly extraordinary horrors faced by Title 42 deportations every day,” wrote Lee Gelernt, an attorney for the families.

“States’ argument effectively amounts to claiming that, with no hearings and no access to asylum, Title 42 is, in their view, a better immigration control system than the actual immigration laws that Congress has enacted,” Gelernt added. “But again, this is an election for Congress.”

The White House has braced for the end of Title 42 and expects a flow of migrants to cross the US-Mexico border. In the Del Rio sector, for example, officials predicted encounters with migrants could double from 1,700 a day to 3,500 a day when Title 42 ends, straining overstretched resources in a remote area of ​​the border.

Despite the freezing of Roberts’ Monday decision, the administration is moving forward with planning, CNN has reported.

“We are carrying on as if nothing has changed,” a senior U.S. Customs and Border Protection official told CNN, adding that political discussions are still ongoing to support Nicaraguans, Haitians and Cubans, who are large numbers of encounters to provide other legal ways.

A group of migrants wait on the U.S. side of the Rio Grande as the Texas National Guard blocks access to portions of the border with barbed wire and vehicles, as seen from Ciudad Juarez, Mexico December 20, 2022.

A DHS spokesman told CNN in an email that officials along the southern border had displaced more than 9,000 migrants from El Paso in the past week. U.S. Border Patrol has also moved nearly 6,000 other migrants to other sectors, the spokesman said, and migrants have been placed in immigration procedures “in addition to several actions taken over the past six months as part of the DHS Safety and Preparedness Plan.” on the south-west border.”

CNN’s Ed Lavandera, reporting from El Paso on Tuesday, described Texas National Guard soldiers erecting fences and barbed wire in areas migrants crossed. The city’s Democratic mayor has declared a state of emergency and the city is looking for storage space that can be used as temporary housing.

Across the border from El Paso in Ciudad Juarez, CNN’s David Culver spoke to migrants who have traveled hundreds of miles for weeks, often on foot, and are now confused as they hope to seek asylum in the US.

As for what happens on Wednesday, if the expiry date is still pending, an official said there could be a “mini surge”.

“I think there are some who probably didn’t get the message and won’t until they cross the border,” the official said. “There are some who have already committed who will cross.”

Late Friday night, the U.S. Court of Appeals for the District of Columbia Circuit ruled against the states, finding they had waited an “unreasonable” time before attempting to intervene in the case. This order triggered the urgent application to the High Court addressed to Roberts.

Arizona Attorney General Mark Brnovich – who took the lead for the states – said Monday that “removing Title 42 will recklessly and needlessly put more Americans and migrants at risk by exacerbating the disaster on our southern border,” adding : “Unlawful crossings are estimated to increase from 7,000 per day to as many as 18,000.”

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A Texas animal shelter is working overtime to keep up with the tide of migrants crossing the US border


– Source: CNN

Brnovich had told the judges in court documents that they should put the lower court’s verdict on hold. Alternatively, he said the judges should issue an “immediate” injunction to maintain the status quo and also consider skipping the appeals court and agreeing to hear arguments on the merits of the matter itself.

“Failing to allow residency here will cause massive irreparable damage to states, especially since states bear many of the consequences of illegal immigration,” Brnovich argued.

In this case, six families who unlawfully crossed the US-Mexico border and were the subject of Title 42 brought the original challenge.

In court filings, the ACLU previously argued that Covid-19 was always just a thinly veiled excuse to step up immigration controls. “There is no legal basis for using an alleged public health measure to replace immigration laws long after any public health justification has expired.”

Although the Biden administration objects to the states’ attempt to intervene in the ongoing dispute and has said it is willing to have the program terminated, it is nonetheless appealing the district court’s opinion to assert the government’s authority uphold, enforce public health orders in the future.

This story has been updated with additional details.

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