Judge Pauses Order Striking Down Title 42 Border Policy

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A U.S. judge on Nov. 16 paused his order striking down Title 42, a public health policy that enables U.S. agents to quickly expel some illegal immigrants amid the COVID-19 pandemic.

U.S. District Judge Emmet Sullivan, a Clinton appointee, ruled Tuesday that the policy violated federal law because the agency that promulgated it “failed to adequately consider alternatives.”

Hours later, the Biden administration asked for a five-week stay of the order so it could transition to a new reality in which it could no longer utilize Title 42 to expel illegal aliens.

The U.S. Department of Homeland Security “requires a short period of time to prepare for the transition from Title 42 to Title 8 processing, given the need to resolve resource and logistical issues that it was unable to address in advance without knowing precisely when currently operative August 2021 Title 42 order would end,” government lawyers said in a motion.

The U.S. Centers for Disease Control and Prevention imposed Title 42 during the Trump administration due to the risk of illegal immigrants bringing COVID-19 into the country. The Biden administration narrowed the order, exempting unaccompanied minors, and then tried ending it altogether, but a different judge blocked that effort.

Title 8 is a federal law enabling expulsions if illegal immigrants do not qualify for asylum.

The U.S. Border Patrol expelled some 1 million illegal aliens under Title 42 in fiscal year 2022, versus 1.1 million under Title 8.

Delaying the implementation of the new order, the government said, would enable officials to “move additional resources to the border” and to coordinate with stakeholders to help prepare for its end.

“This transition period is critical to ensuring that DHS can continue to carry out its mission to secure the Nation’s borders and to conduct its border operations in an orderly fashion,” government officials said.

The illegal immigrant plaintiffs who brought the case did not oppose the motion.

Sullivan said he would pause his order.

“Pursuant to Federal Rules of Civil Procedure 59 and 60, the Court’s inherent authority, and in view of the lack of opposition by Plaintiffs, the government’s representation that the request for a temporary stay is not for the pendency of appeal, but rather to enable the government to make preparations to implement the Court’s Order, the Court, WITH GREAT RELUCTANCE, grants the request,” the judge said.

The ruling moves the end of Title 42 from Nov. 15 to Dec. 20.

The government has given no indication it will appeal Sullivan’s order striking down Title 42, since it favors ending Title 42.

Officials have said the public health policy is being wrongly used as an immigration policy.

The Vera Institute, which seeks to lower the number of immigrants in detention, was among those welcoming the policy being struck down.

“Title 42 should never have been used to inflict suffering on asylum seekers entering the United States. We need an immigration system grounded in respect and dignity, not punishment and dehumanization,” the group said in a statement.

Organizations that advocate for stronger border enforcement, though, said the ruling was wrong.

“This decision … knocks down one of the last remaining barriers to complete anarchy at the border,” Dan Stein, president of the Federation for American Immigration Reform, said in a statement. “If the Biden administration does not appeal, it will be one of the most egregious derelictions of duty when it comes to border security, once again proving that the crisis is deliberate and something they never intend to fix.”

Zachary Stieber

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Zachary Stieber covers U.S. and world news for The Epoch Times. He is based in Maryland.



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