Judge blocks U.S. border officials from winding down Title 42 expulsion policy

A federal judge in Louisiana on Wednesday temporarily blocked the Biden administration from immediately winding down an emergency pandemic-era border restriction that has allowed U.S. authorities to quickly expel migrants, as officials await his ruling on plans to end the policy in late May.

The border restriction, known as Title 42, is set to end on May 23. But the Department of Homeland Security (DHS) had started to wind down the program by placing more migrants in a process known as expedited removal, which allows U.S. border officials to deport certain migrants without court hearings.

Twenty-one Republican-led states filed a lawsuit earlier in April to stop the Biden administration from ending Title 42, and last week, asked U.S. District Judge Robert Summerhays, an appointee of former President Donald Trump, to issue a temporary restraining order “against any implementation” of the policy’s termination before May 23.

On Wednesday, Summerhays, who sits on the U.S. District Court for the Western District of Louisiana, issued a 14-day temporary restraining order blocking border authorities from phasing out Title 42 while he continued to weigh the states’ arguments. 

During a status conference on Monday, Summerhays said the 21 states, led by Arizona, Louisiana and Missouri, had established a “likelihood of success” in arguing that the order to terminate Title 42 on May 23 did not follow procedural requirements, a transcript of the closed-door meeting shows.

Since its inception in March 2020, the Title 42 authority has allowed U.S. authorities along the Mexican border to expel migrants over 1.8 million times to Mexico or their home countries without allowing them to seek asylum, which is generally required by U.S. law, government data show.  

Unlike Title 42, which is authorized by a World War II-era public health law, expedited removal was created by a 1996 immigration law and has been used to deport recent border-crossers by Republican and Democratic administrations.

While he instructed DHS to “act in good faith to avoid taking actions” that phase out Title 42, Summerhays allowed officials to place adult migrants caught crossing the border illegally multiple times in expedited removal proceedings and to deport them to their home country under that authority.

But Summerhays gave the Republican attorneys generals the power to object if they believe the administration should be expelling more migrants. He also directed the administration to submit weekly reports with data demonstrating compliance with his order.

A spokeswoman for the Justice Department, which represents the federal government against lawsuits, declined to comment on Wednesdays’ court order.

Summerhays has scheduled a May 13 hearing to consider the Republican-led states’ request for him to stop the administration from halting the Title 42 expulsions on May 23.

During Monday’s status conference, Summerhays signaled support for the arguments presented by the Republican attorneys general, saying their states could experience “immediate and irreparable harm” if Title 42 is ended because of social services expenses for migrants.

“The states contend that the termination of the Title 42 suspension orders will result in increased costs and burdens, including increased healthcare costs,” Summerhays said, according to the transcript. “The Court concludes that the record supports these allegations and that the fact of those increased costs is sufficient to support injunctive relief.”

While it reversed other Trump-era border restrictions, the Biden administration continued Title 42 for over a year, arguing the quick expulsions were necessary to control the transmission of COVID-19 inside migrant processing facilities.

But earlier in April, the Centers for Disease Control and Prevention published an order saying the agency no longer believed the expulsions were needed to protect public health. The CDC said it would stop authorizing Title 42 on May 23 to give border officials time to make preparations.

The CDC announcement alarmed Republicans and some moderate Democratic lawmakers, who have expressed doubts about the Department of Homeland Security’s ability to deal with a likely spike in migrant arrivals after Title 42 is lifted.

On Tuesday, DHS officials released updated plans describing preparations to handle a sharp increase in border arrivals, pledging to increase enforcement measures such as deporting migrants who don’t qualify for asylum and the detention of single adults.

In an interview with CBS News last week, Homeland Security Secretary Alejandro Mayorkas rebuffed criticism that his department has not been adequately preparing for Title 42’s termination. He cited the deployment of additional personnel to the southern border, the expansion of migrant transportation assets and the establishment of processing facilities.

“The assertion that we do not have plans is an assertion that is not grounded in fact,” Mayorkas said. “We have been planning for months to address increases in migration; those that we already have experienced and those that we might experience upon an end to Title 42.”

Editors note: This story was updated to clarify the issue the judge’s temporary restraining order is expected to address.

Camilo Montoya-Galvez

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