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US judge lifts Title 42 policy used to bar Haitians, other migrants

MIAMI — Title 42, a federal policy used during the pandemic to bar and expel migrants mainly at the US-Mexico border, was blocked by a federal judge this week. This policy, conjured by the Trump administration and continued under Biden, drew controversy over whether it should be used to turn away migrants seeking an asylum hearing.

“This is a huge victory and one that literally has life-and-death stakes,” said Lee Gelernt, the lead American Civil Liberties Union lawyer on the Title 42 federal case in a statement. “We have said all along that using Title 42 against asylum seekers was inhumane and driven purely by politics.”

The Department Homeland Security has requested five weeks to prepare for change for “an orderly transition to new policies at the border,” so details are still emerging about what the ruling mean for Haitians who had been turned away or might be arriving at the southern border. 

Still, pro-immigration advocates welcomed the Nov. 15 ruling.

“It is due time, it was never meant to be a law implemented the way it was,” Tessa Petit, executive director of the Florida Immigrant Coalition, said. “It’s the best thing that could’ve happened.”

Before Title 42, people who crossed the border would be apprehended by immigration officials and put into removal proceedings unless they requested asylum. Throughout the pandemic, both administrations used the health-related policy initially invoked to limit migrants crossing the border for reasons critics say had little to do with the spread of Covid-19. After the arrival of thousands of Haitians in Del Rio in September 2021, the DHS also used Title 42 to expel tens of thousands of Haitians on flights back to Haiti. 

Judge Emmet Sullivan, of the federal district court of the District of Columbia, ruled Tuesday that Title 42 was “arbitrary and capricious” and in violation of the Administrative Procedures Act, violating standards because the CDC  “failed to adequately consider alternatives and the policy did not rationally serve its stated purpose.”

“With regard to whether defendants could have ‘ramped up vaccinations, outdoor processing, and all other available public health measures,’… the court finds the CDC failed to articulate a satisfactory explanation for why such measures were not feasible,” Sullivan wrote in a 49-page opinion.

Sullivan’s order could restore access to asylum, allowing migrants to enter the US and make their case in immigration court.

In April, the Biden Administration attempted to end the use of Title 42, but Republican attorney generals in Missouri, Arizona, and Louisiana sued, arguing it would cause states to spend taxpayer money on services for immigrants. Texas and Louisiana also asked a federal court to hold DHS in contempt for not expelling thousands more Haitian migrants.
“Both Texas and Louisiana have their knives out for Black immigrants,”  said Aaron Reichlin-Melnick, policy director at the American Immigration Council in a Nov. 2 tweet. “Once Haitians stopped crossing irregularly, it’s so telling that the plaintiffs once again demand that a federal court wield Title 42 against Haitians to stop them from entering at ports of entry too.”

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