Advocates criticize U.S. Supreme Court decision on Title 42

Immigrant advocates are criticizing the U.S. Supreme Court’s decision this week to temporarily block a lower court order to bring back the controversial pandemic health measure that restricts migration at border crossings.

The order, called Title 42, was first implemented by the Trump administration in 2020 as a measure to stop the spread of COVID-19. It allows border officials to send migrants — including asylum seekers — away from the border without due process.

It has been used to turn people away from the border more than 2 million times, according to data from Customs and Border Protection (CBP).

Immigrant advocates say thousands of these migrants have been brutalized by kidnappers and criminals in Mexico after being barred from entering the United States.

“This has caused terrible, terrible harm,” said Lee Gelernt, the ACLU’s lead attorney in a federal lawsuit against Title 42 that was filed shortly after Trump passed it.

Human Rights First has tracked 13,480 reports of migrants being murdered, tortured, kidnapped, raped and killed since being deported to Mexico under Title 42 since President Joe Biden took office.

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The order has survived most other Trump-era immigration policies and pandemic-era restrictions. As a candidate for the 2020 election, Biden promised to roll back all of Trump’s anti-immigration policies.

Gelernt said he and other advocates are bitterly disappointed with how Biden has handled Title 42

“When President Biden was running for president, he said ‘I want a more humane asylum system,'” Gelernt said. It really hasn’t come to fruition, and we really need this administration to step up and say in the United States that we’re not going to just send people back into harm’s way without even being consulted.”

Order extended

Biden actually expanded the order to include Cubans, Nicaraguans, and Venezuelans who were not originally included in the policy. When the administration formally sought to end the policy in the summer of 2022, a group of conservative attorneys general sued to block the termination.

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Meanwhile, the ACLU’s lawsuit continued to work its way through the courts. In November, the judge ruled in the ACLU’s favor and ordered the Biden administration to end it by December 21.

But that sentence was short-lived. The group of public prosecutors, now numbering 19, appealed the sentence and brought it to the Supreme Court.

Days before the Dec. 21 termination date, the justices agreed to rule on whether those states have the legal right to intervene in the ACLU’s case. Justices are scheduled to hear arguments in February 2023. The justices are pausing the termination of Section 42 until they rule.

Officials from conservative states have argued that repealing Title 42 would result in an increase in migration. Gelernt said it would be a self-inflicted wave.

“If you block the border for three years, of course there will be a build-up,” he said. “But I think ultimately, to the extent there is an influx, it will be short-term.”

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The Supreme Court’s decision received universal condemnation from organizations that work directly with migrants.

Melissa Crow, director of litigation at the Center for Gender & Refugee Studies, said the decision “will have deadly consequences for people fleeing persecution.”

Gelernt said it was ironic that the same conservative states that pushed back other COVID-era restrictions (quarantines, mask requirements and vaccine mandates) are now fighting to keep Title 42 alive.

“These 19 states have almost uniformly opposed any kind of COVID restriction,” he said. “The only type of COVID restrictions they claim to support is one that targets vulnerable asylum seekers. So I think it’s hypocritical of these states to claim they want to keep a COVID restriction in place.”

San Diego Congressman Juan Vargas also criticized the “conservative-controlled” Supreme Court decision. “Delaying the end of Title 42 will only create more chaos and put additional pressure on our already dysfunctional immigration system,” Vargas said.


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