U.S. to appeal ruling invalidating Title 42 border restriction

Title 42 border policy ends in 2 weeks

Washington — The Biden administration will be appealing a court ruling that invalidated a public health order U.S. border officials have used to expel migrants en masse from the U.S.-Mexico border during the coronavirus pandemic, the Justice Department announced Wednesday.

In a filing in the federal district court in Washington, D.C., the Justice Department said the administration had decided to appeal a ruling from last month that will require the government to stop enforcing the pandemic-era border restriction, known as Title 42, the section of the U.S. code containing public health laws.

“The government respectfully disagrees with this Court’s decision and would argue on appeal, as it has argued in this Court, that CDC’s Title 42 Orders were lawful,” the Justice Department said in its filing to U.S. District Court Judge Emmet Sullivan, who declared the Trump-era policy unlawful last month.

Sullivan later gave the administration several weeks, until Dec. 21, to halt the expulsions and comply with his mandate.

While it announced an appeal, the Justice Department did not ask for Sullivan’s ruling to be paused and said it would seek to have the case suspended while a separate appeal of another court order that blocked the termination of Title 42 this spring is decided, and while the government issues a new regulation governing the legal authority to expel migrants on public health grounds.

If the administration wins the other Title 42 case, stemming from a ruling by a federal judge in Louisiana, the case in Washington, D.C. would become “moot,” the Justice Department argued. A Justice Department spokesperson declined to elaborate further on Wednesday’s filing. 

A Biden administration official said the Justice Department was not asking federal courts to keep Title 42 in place. Instead, the official said, the government is defending the authority behind the expulsions. The Department of Homeland Security “continues to charge full speed ahead in preparing for Title 42 to lift on December 21,” the official added.

The Dec. 21 termination date, however, could still shift. More than a dozen Republican-led states are asking Sullivan to let them defend Title 42 in court and have signaled that they will ask for his ruling to be suspended, which would delay the policy’s termination. If Sullivan denies the states’ motion, they could ask the D.C. Circuit Court of Appeals and the Supreme Court to intervene.

Immigrants seeking asylum in the United States are processed by U.S. Border Patrol agents after crossing into Arizona from Mexico on September 26, 2022 near Yuma, Arizona.
/ Getty Images

Since March of 2020, when the Trump administration first invoked Title 42, the U.S. has carried out over 2.4 million migrant expulsions along its southern border under the policy, which the Centers for Disease Control and Prevention authorized as a measure to curb the spread of COVID-19, despite internal opposition.

The ruling by Sullivan last month stemmed from a lawsuit filed by the American Civil Liberties Union (ACLU), which has argued that Title 42 is an illegal policy that violates the rights of asylum-seekers.

The Justice Department’s decision to appeal the ruling, without seeking to pause it, is the latest twist in a year-long legal battle over the fate of Title 42.

To the dismay of progressive advocates for asylum-seekers, the Biden administration vigorously defended Title 42 for over a year, including in federal court, arguing that the policy was needed to reduce coronavirus outbreaks along the southern border amid unprecedented levels of migrant arrivals there. 

Then, in April of this year, the CDC announced it would stop authorizing Title 42, citing improving pandemic conditions, including increased vaccination rates in migrants’ home countries. But a coalition of Republican-led states filed a lawsuit against the termination and convinced a federal judge to block it on procedural grounds.

The Biden administration subsequently continued to rely on Title 42 to manage the record-shattering migration flows along the southern border, using it to carry out over 1 million expulsions of migrants in fiscal year 2022, a 12-month time span that ended on Sept. 30, government statistics show.

Soon after Sullivan declared Title 42 illegal last month, the Biden administration asked him to give border officials five weeks to comply with his ruling. Sullivan approved the pause, albeit with “great reluctance,” saying he did so because it was not a request to suspend his ruling pending an appeal.

Once Title 42 ends, the U.S. will need to consider the cases of all migrants who say they fear being persecuted or tortured if deported, as stipulated in U.S. asylum law.

The Biden administration has said it is planning to surge agents and resources to the southern border and to increase regular deportations, but Republicans, and some moderate Democrats, have expressed concern about the administration’s ability to manage an even greater increase in migrant arrivals.

Camilo Montoya-Galvez

Camilo Montoya-Galvez is the immigration reporter at CBS News. Based in Washington, he covers immigration policy and politics.

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