Judge says migrants still need to be denied entry for health reasons

A federal judge said Monday he would block the Biden administration from exempting migrants from deportation under a Trump-era public health order until the policy is officially repealed next month.

The federal government has announced plans to lift the order, known as Title 42, on May 23 – a move that is expected to create a significant increase in migration from Mexico. Several states have challenged the plan, saying it will wreak havoc on the border and lead to significant consequences for states forced to deal with the newly arrived migrants.

Judge Robert R. Summerhays of the United States District Court for the Western District of Louisiana has not yet ruled on whether Title 42, adopted early in the coronavirus pandemic, should be kept in place. But he said he would meanwhile respond to a request from the states of Missouri, Louisiana and Arizona to prevent the federal government from taking some early steps to disregard Title 42 for certain migrants and treat them during normal immigration procedures.

In their trial, the states said there were indications that many migrants from Guatemala, Honduras and El Salvador had not already been deported from Title 42, more than a month before the planned repeal of the order.

“As Title 42 may be ‘technically still in place’, the reality of the matter is that DHS ‘has largely stopped using Title 42 to remove migrants from countries in the Northern Triangle,'” the states’ proposal, citing a report from Fox News.

The Department of Homeland Security acknowledged in its response to the proposal that it had begun treating some migrants from Central America – about 14 percent over a recent one-week stretch – under pre-pandemic guidelines. However, the agency said the migrants were not necessarily allowed to stay in the country but were placed in an expedited removal procedure, making it harder to re-enter the country later.

In the states’ proposed order, which Judge Summerhays said he would sign, the states called for a halt to any action that “formally implements” the termination of section 42, or that has “substantially similar effect.”

Judge Summerhays, a nominee by President Donald J. Trump whose administration originally adopted the public health order, also ordered the government to certify under oath that agencies had not taken any actions during the past month that could “reasonably be characterized” as executive. the notice of termination before 23 May.

Public health policy was originally adopted in 2020 to slow the spread of Covid-19. Its effect has been to reduce the number of undocumented migrants who are allowed to enter the United States, significantly, a key goal for Mr. Trump’s immigration policy.

President Biden, who took office and promised a more humane border policy, has nonetheless struggled to plan the expected impact of repealing public health. Some predictions have suggested that about 12,000 to 13,000 migrants a day may cross the southern border when the policy is no longer in place. The administration has prepared for up to 18,000 daily border crossings – a huge increase over the current rate of around 8,000 a day.

The proposal submitted by the three states calls for the Department of Homeland Security to stop all treatment of migrants from El Salvador, Guatemala and Honduras in the same way as before the public health measure, which essentially allowed many migrants to enter the United States and apply asylum applications.

The temporary detention ends in 14 days, it says, unless the court takes steps to dissolve or extend it before it expires.

The three states filed a lawsuit on April 3, two days after the Federal Centers for Disease Control and Prevention issued its order to stop the policy in May. On Friday, they asked the court to issue a temporary detention order to halt any early settlement of section 42, saying it appeared the federal government “partially implemented the denial order already” well before May 23.

Judge Summerhays announced that he intended to address the proposal during a virtual status conference on the case.

Since its introduction in March 2020, section 42 has been relied upon by officers along the southern border to deport migrants more than 1.8 million times – to Mexico or their home countries, including by air – without allowing them to apply for asylum.

A number of Republican lawmakers, as well as an increasing number of Democrats, had been critical of the plan to remove the measure because of the predictions of chaos that would arise along the border.

At the same time, progressive Democrats had pressured the Biden administration to scrap the policy, which they said was no longer justified for health reasons and was instead used to restrict immigration.

An increasing number of migrants that the U.S. Border Patrol met gave Republicans ammunition to attack the administration for not controlling unauthorized migration, even with the order in place.

Texas Attorney General Ken Paxton on Friday filed a lawsuit against the termination of Title 42, describing it as “the only” rule holding back a “devastating flood of illegal immigration.”

Authorities encountered more than 221,000 migrants last month, the largest number in at least two decades. In March, officials dismissed people under Title 42 half the time.

The public health order has always been used inconsistently, with the government allowing migrants under humanitarian exceptions and other reasons.

Along many stretches of the border, on the other hand, the Mexican authorities refused to accept the return of migrants with young children and from distant lands, such as Brazil, Cuba and India.

Human rights defenders say Mr Biden’s administration has used the public health measure to curb immigration.

“We have said from the outset that it was never justified and we welcomed the CDC’s decision to lift the order,” said Robyn Barnard, senior lawyer for Human Rights First. “It is clear from these lawsuits and attempts by Congress to keep Title 42 in place that all the pretext that this was a public health measure was just that.”

Recent polls suggest that the abolition of Title 42 was considered unfavorable by a majority of voters, and the president’s party is already facing headwinds in the midterm elections.

The White House has said that Title 42 was a public health provision and that a decision to repeal it was made by the CDC, forcing the government to prepare to deal with an increase in the number of migrants crossing the border.

Vedant Patel, a White House spokesman, referred a request for comment to the archives and questions about whether the administration would appeal to the Justice Department. In a tweetMissouri’s Secretary of Justice Eric Schmitt wrote: “Our office has just been given a temporary restraining order to keep Title 42 in place. This is a huge victory for border security, but the fight continues.”

Zolan Kanno-Youngs contributed with reporting.

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