A federal judge issued an injunction Thursday blocking the government’s use of pandemic powers to immediately expel illegal immigrants who jump the border, dealing a severe blow to President Biden’s hopes of stemming the border surge.
Judge Emmet G. Sullivan issued a 14-day stay of his ruling, giving the administration a chance to seek intervention by a higher court, though that move would be fraught with political consequences.
The judge said the expulsion powers — known as Title 42— go beyond what Congress intended. He said the challengers, including the American Civil Liberties Union, are likely to succeed in a full proceeding, so an injunction is appropriate now.
“Here, the Title 42 Process deprives Plaintiffs and the proposed class members of an opportunity to seek humanitarian protections under the asylum and withholding of removal statutes,” the judge ruled.
Title 42 is a public health order issued by the Centers for Disease Control and Prevention which says that unauthorized border crossers heighten the risk of spread of COVID-19, and can be blocked from being “introduced” into the country.
The Trump administration triggered Title 42 at the start of the pandemic and the Biden team, despite intense pressure from immigrant-rights activists, has kept it in place.
Those activists argued that people who were entitled to protection in the U.S., such as asylum-seekers, were blocked from even making their claims.
“President Biden should have ended this cruel and lawless policy long ago, and the court was correct to reject it today,” said Omar Jadwat, director of the ACLU’s immigrant rights project.
If the ruling stands, it would put a major dent in the administration’s efforts. More than 46% of all border jumpers in August were expelled under the Title 42 powers. Of those that weren’t expelled, about half were caught and released into communities.
During the Trump administration, more than 90% of border crossers during the pandemic were expelled using Title 42.
Judge Sullivan rejected the government’s argument that canceling Title 42 would be a “pull factor,” enticing more people to make the journey.
He pointed to the administration’s own data suggesting that even though the Border Patrol was making more apprehensions, an increasing number were repeats.
Customs and Border Protection, data released this week about August border operations, said that while agents and officers recorded 208,887 unauthorized entries, that comprised just 156,641 unique people.
The Biden administration had reportedly been looking to end Title 42 powers earlier this year, but an unprecedented surge of illegal immigration put that idea on ice as the administration struggled for other answers.
Instead it has shifted toward a get-tough policy, announcing an expansion of speedy deportation powers and flights to send illegal immigrants deeper into Mexico to prevent them immediately trying again.