A federal judge ruled Tuesday that the so-called Title 42 policy that allowed Homeland Security to expel some illegal immigrants at the border is illegal, a decision that could deprive the government of a key tool to control the already chaotic southern border.
The ruling conflicts with another court decision ordering Title 42 to be maintained, and it wasn’t immediately clear how the competing decisions will be squared.
Judge Emmet Sullivan said migrants expelled back to Mexico under the policy have faced violence and abuse. He ruled the government was rash in turning to expulsions as part of its pandemic policy to prevent coronavirus cases from being introduced by illegal immigrants.
He said that this deep into the pandemic, the government could find less intrusive alternatives to control the spread of the coronavirus, and he questioned whether there was a reason to worry about migrant spread in the first place.
“Defendants have not shown that the risk of migrants spreading COVID-19 is ‘a real problem,’” Judge Sullivan wrote.
The Biden administration said it has asked for a delay in the decision taking effect in order “to allow the government to prepare for an orderly transition to new policies at the border.”
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Homeland Security, in an unsigned statement, said it expects the chaos to worsen.
“We know that smugglers will lie to try to take advantage of vulnerable migrants, putting lives at risk,” the department said.
The ruling comes at a particularly tough time for the Biden administration, which has recently embraced the Trump-era Title 42 expulsions as a way to stem record flows of illegal immigrants.
Earlier estimates had predicted that illegal crossings could reach as high as 18,000 people a day. Current rates are roughly 7,000 a day.
Immigrant-rights advocates, who had long pressed the Biden team to eliminate Title 42 and called it a “racist” policy, cheered the judge’s ruling.
“Title 42 has caused profound suffering and has directly jeopardized lives by forcing people to remain in dangerous conditions for no justifiable reason,” said Murad Awawdeh, executive director of the New York Immigration Coalition. “Judge Sullivan’s decision today to block the implementation of Title 42 will help protect people pursuing freedom and safety in our country and is a clear step forward in defending people’s basic human rights.”
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But those who favor stricter immigration enforcement predicted already record levels of illegal border encounters will rise even further.
“This decision — which takes effect immediately — knocks down one of the last remaining barriers to complete anarchy at the border,” said Dan Stein, president of the Federation for American Immigration Reform. “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.”
Title 42 was first implemented under President Trump but was kept in place by the Biden team as it sought to buy time to get control of the border.
Instead, the numbers have deteriorated.
Numbers released this week showed more than 204,000 illegal immigrants were apprehended by Border Patrol agents last month, marking the worst October on record.
Experts say the Biden administration is already catching-and-releasing into the U.S. a majority of those apprehended. But the expulsions have tamped down on some numbers.
The Biden team is a late convert to expulsions, expanding use of the policy against Venezuelans last month.
Homeland Security Secretary Alejandro Mayorkas said the expulsions, combined with a new program to allow some to come in legally, cut the rate of illegal immigrant Venezuelans from 1,100 a day down to about 300 a day.