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Supreme Court keeps Title 42 border expulsions in place indefinitely, granting GOP-led petition

Ruling maintains Title 42 border restrictions
Supreme Court keeps Title 42 border restrictions in place 03:52

The Supreme Court on Tuesday allowed U.S. border officials to continue expelling migrants under a policy known as Title 42 indefinitely, granting a petition from Republican-led states to prevent the Biden administration from immediately ending the pandemic-related measure.

The high court decided to hear a request from 19 Republican-led states who were seeking to delay the end of Title 42, which was originally set to expire on Dec. 21 because of a lower court order that found the policy to be unlawful.

The Supreme Court will now hear arguments on whether it should allow the Republican-controlled states to defend Title 42's legality during its February 2023 session. In the meantime, the court agreed to suspend the lower court order which had invalidated the expulsion policy. That means Title 42 will likely remain in place for several months pending the high court's review.

First invoked in March 2020, at the outset of the COVID-19 pandemic, Title 42 is a public health law dating back to the 19th century that federal border officials have cited to expel migrants 2.5 million times to Mexico, or their home countries, without allowing them to request asylum, a right enshrined in U.S. and international refugee law.

Top officials at the U.S. Centers for Disease Control and Prevention under both the Trump and Biden administrations have insisted that Title 42 was designed to curb the spread of the coronavirus by limiting the entry of migrants. But the policy's public health rationale has been contested by outside experts and the CDC's own scientists.

El Paso border migrants
Immigrants keep warm by a fire at dawn after spending the night outside next to the U.S.-Mexico border fence on Dec. 22, 2022, in El Paso, Texas.  Getty Images

Liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined conservative Justice Neil Gorsuch in opposing the Republican-led states' request. In a dissenting opinion in which he was joined by Jackson, Gorsuch wrote that it was improper for the Supreme Court to keep the border expulsions in place, noting the GOP states did not "seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed."

Gorsuch recognized the states' concerns about Title 42's termination potentially fueling a bigger spike in migrant arrivals, but he said, "the current border crisis is not a COVID crisis."

Federal courts, he wrote, "should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort."

In a statement Tuesday, White House press secretary Karine Jean-Pierre said the administration would comply with the Supreme Court's ruling. But she also echoed Gorsuch's sentiments, calling on Congress to pass legislation to overhaul U.S. immigration and border laws.

"At the same time, we are advancing our preparations to manage the border in a secure, orderly, and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration," Jean-Pierre added. "Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely."  

Advocates for asylum-seekers strongly criticized Tuesday's ruling, saying it would continue to place migrants at risk of being victimized in areas of Mexico that the U.S. State Department advises Americans not to visit because of high rates of crime, including kidnappings.

"Keeping Title 42 will mean more suffering for desperate asylum seekers but hopefully this proves only to be a temporary set back in the court challenge," said Lee Gelernt, an American Civil Liberties Union lawyer who filed a lawsuit against the expulsions.

For nearly three years, the U.S. has used Title 42 to swiftly expel the majority of adult migrants from Mexico and Central America's Northern Triangle who have been stopped along the southern border. While it reversed some Trump-era asylum policies, the Biden administration has relied on Title 42 as its main border enforcement tool amid record levels of migrant apprehensions reported in fiscal years 2021 and 2022.

In fiscal year 2022, a 12-month time span that ended Sept. 30., federal authorities intercepted migrants a record 2.3 million times along the U.S.-Mexico border, with just over one million of those detentions leading to expulsions under Title 42, according to Customs and Border Protection statistics

While Title 42, on paper, applies to all migrants who don't have permission to enter the U.S., not everyone faces expulsion due to diplomatic and logistical reasons, as well as policy decisions. 

The Biden administration, for example, has exempted some groups from Title 42, including unaccompanied children, Ukrainian refugees and asylum-seekers deemed to be vulnerable.

Moreover, because the Mexican government has generally only accepted the return of its nationals — as well as migrants from Guatemala, Honduras, El Salvador, and more recently, Venezuela — those nationalities face a disproportionate number of expulsions to Mexico.

Deportations to Cuba, Nicaragua and Venezuela — which have seen record numbers of their citizens flee to the U.S. to escape economic and political turmoil — are limited or rejected by the authoritarian governments there. Deportation flights to other far-flung countries, meanwhile, are costly and not as frequent.

This means that most migrants who are not from Mexico or Central America's Northern Triangle do not face expulsion under Title 42, and are instead processed under U.S. immigration law, which allows them to request asylum. Oftentimes, they are released with a court notice or instructions to check in with immigration officials in their respective U.S. destinations.

Southern U.S. Border Sees Rise In Migrant Crossings As Title 42 Policy Is Set To Expire
Colombian immigrant Gisele, 18, bundles up against the cold after spending the night camped alongside the U.S.-Mexico border fence on December 22, 2022 in El Paso, Texas. / Getty Images

Tuesday's order by the Supreme Court is the latest twist in a complicated legal fight over Title 42 playing out in federal courts across the U.S. between the Biden administration, conservative-leaning states and groups that support asylum-seekers. 

While it argued that Title 42 was necessary to contain the coronavirus for two years, the CDC in April announced it would stop authorizing the expulsions, saying the measure was no longer needed amid improving pandemic conditions, including increased vaccination rates in migrants' homelands.

But the termination of Title 42 this spring was blocked on procedural grounds by a federal judge in Louisiana at the request of a coalition of Republican attorneys general. The Biden administration appealed, but that case has not been resolved.

In November, a federal judge in Washington, D.C., invalidated Title 42, agreeing with the American Civil Liberties Union in a separate lawsuit that the government had not sufficiently explained the rule's public health benefit or considered its impact on asylum-seeking migrants.

While it opposed the ruling's assertion that Title 42 was illegal, the Biden administration agreed to discontinue the expulsions on Dec. 21, since the CDC had already determined they no longer served a public health purpose. But the same coalition of GOP-led states that sued over Title 42's termination this spring moved to intervene in the case in a bid to keep the expulsions in place indefinitely.

Alabama, Alaska, Arizona, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming have argued that Title 42's end will worsen the humanitarian crisis along the southern border.

The Biden administration has also projected a spike in migrant arrivals once Title 42 is lifted, at least in the short-term. But it has argued that the full restoration of pre-pandemic immigration enforcement policies will gradually reduce illegal crossings, saying some migrants will still face rapid removal once Title 42 expires.

While Republican lawmakers and some moderate Democrats have portrayed Title 42 as an effective measure to curb illegal migration, the policy has led to a significant rise in repeat border crossings by migrants expelled to Mexico without any traditional consequences, such as prosecution, or multi-year banishments from the U.S.

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