Analysis of Court Order Enforcing Title 42 Restrictions on Migrants

By CHHS Extern Cailey Duffy

On September 30th, the U.S. Court of Appeals for the District of Columbia allowed a stay of the September 16th ruling in Huisha-Huisha v. Mayorkas. Circuit judges Rogers, Millett, and Katsas allowed the Biden administration to continue enforcing the Title 42 order while their appeal is in progress. Title 42 was issued under former president Trump in March 2020. It allows the government to prevent certain individuals from entering the U.S. during public health emergencies. Former President Trump cited the coronavirus pandemic as a reason to expel migrants attempting to enter the United States. President Biden has continued this order, deporting over 900,000 migrants, and rationalizing it as a preventative measure to keep detention centers from overflowing during the pandemic. To combat the order, the ACLU filed a preliminary injunction in U.S. District Court, arguing that individuals at the border should be allowed to seek asylum under U.S. law. On September 16th, the injunction was granted.

In his opinion in Huisha-Huisha, Judge Sullivan ruled that Congress is not authorized to expel migrants under Title 42 – it is only allowed to limit who enters. He held the plaintiffs had shown they were likely to suffer irreparable harm as a result of deportation, as many would have to return to violent and unsafe home countries. Furthermore, he argued that the migration would not likely affect coronavirus rates, due to the wide availability of testing and vaccines. The injunction did not prevent the expulsion of single adults, so many individuals were still left with no choice but to be returned to their previous country of residence. The Biden administration appealed, and the appeal was granted. The administration cites the need for the Title 42 order as preventing a surge of migrant families that the nation is unable to handle given the current pandemic. They worry that an influx of migrants would lead to higher rates of COVID-19. However, the administration has not provided evidence that this would actually be the case.

Biden is under pressure from the Republican Party to crack down on migration due to the increasing number of arrests at the border. His critics believe that reversal of former president Trump’s immigration policies has led to an uptick in migration. However, it is more likely this increase in migration is due to political turmoil and food insecurity in nations like El Salvador, Guatemala, and Haiti. While Biden’s administration has exempted unaccompanied children from the Title 42 deportations and is trying to be more lenient with families at the border, many are concerned that the continuance of Title 42 in any capacity contradicts Biden’s campaign promises of a more humane approach to immigration. Biden is surely in a difficult spot, caught between Democratic critics of the Title 42 order and republican critics of his immigration reform. However, categorizing migration as a public health threat is not only speculative, but creates serious humanitarian concerns.