Pandemic-related restrictions on migrants seeking asylum on the southern border must continue, a judge ruled Friday in an order blocking the Biden administration’s plan to lift them early next week.
The ruling is just the latest instance of a court derailing the president’s proposed immigration policies along the U.S. border with Mexico.
The Justice Department said the administration will appeal, but the ruling sharply increases the odds that restrictions will not end as planned on Monday. A delay would be a blow to advocates who say rights to seek asylum are being trampled, and a relief to some Democrats who fear that a widely anticipated increase in illegal crossings would put them on the defensive in an already difficult midterm election year.
In Tijuana, Mexico, Yesivet Evangelina Aguilar, 34, cupped her face in her hands and sobbed when she learned of the decision from an Associated Press reporter. “I feel like there is no hope left,” said Aguilar, who fled the Mexican state of Guerrero nearly a year ago after her brother was killed. “It feels so bad.”
Aguilar was blocked by U.S. authorities from applying for asylum when she and her 10-year-old daughter went to the Tijuana-San Diego port of entry nine months ago. On Friday, she was lying in a tent at Agape Mision Mundial, where scores of migrants are camped. Some have been there for months or years. Aguilar's life in waiting has been not only tedious but dangerous. On Thursday night, a fellow migrant was shot in the neck by a stray bullet from a shootout outside the shelter.
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Migrants have been expelled more than 1.9 million times since March 2020 under Title 42, a public health provision that denies them a chance to request asylum under U.S. law and international treaty on grounds of preventing the spread of COVID-19.
U.S. District Judge Robert Summerhays in Lafayette, Louisiana, ordered that the restrictions stay in place while a lawsuit led by Arizona and Louisiana — and now joined by 22 other states — plays out in court.
Summerhays sided with the states in ruling that President Joe Biden's administration failed to follow administrative procedures requiring public notice and time to gather public comment on the plan to end the restrictions. And he said the states made the case that they would suffer harm if the restrictions end.
The judge cited what he said were the government’s own predictions that ending the restrictions would likely increase border crossings threefold, to as many as 18,000 daily. That, he added, would result in more migrants being processed in congregate settings where contagious disease can be spread. “The record also includes evidence supporting the Plaintiff States’ position that such an increase in border crossings will increase their costs for healthcare reimbursements and education services. These costs are not recoverable," Summerhays wrote.
The Justice Department said Friday that the U.S. Centers for Disease Control and Prevention had legally exercised its authority in moving to end the pandemic restriction.
Many who crossed the border Friday at Eagle Pass, Texas, knew little or nothing about the issue. Many were from Cuba, Colombia, Nicaragua and Venezuela — nationalities that have mostly been spared from the asylum ban because high costs, strained diplomatic relations or other considerations make it difficult for the U.S. to fly them home.
Title 42 has largely affected people from Mexico, Guatemala, Honduras and El Salvador, many of whom have been waiting in Mexican border towns after being denied the right to seek asylum by the U.S. government. Mexico has agreed to accept migrants from those three Central American countries who were turned back by the U.S. and last month also started taking in limited numbers of Cubans and Nicaraguans who have been turned away by U.S. authorities.
Nolberto Avila, a small coffee grower who fled threats of violence in Colombia and left his mother and a sibling there to manage the harvests, had never heard of Title 42 in the social media channels that migrants consult to determine whom they can trust and whom and what to avoid. Online chatter directed him to Eagle Pass after he flew to Cancun and took buses to the U.S border.
“It feels good to be here,” said Avila, 30, who spent $3,000 on airfare and other travel expenses, such as bribes to Mexican soldiers. His ultimate destination is Los Angeles.
Summerhays, who was appointed by President Donald Trump, had already ruled in favor of the states by halting efforts to wind down use of the pandemic-era rule. He said last month that a phaseout would saddle states with “unrecoverable costs on healthcare, law enforcement, detention, education, and other services.”
Title 42 is the second major Trump-era policy to deter asylum at the Mexican border that was jettisoned by Biden, only to be revived by a Trump-appointed judge.
“We are gratified that the District Court has issued this Preliminary Injunction to stop the Biden Administration from rescinding Title 42 and turning our already unimaginably catastrophic border nightmare into an even more unimaginable hellscape," former Trump aide Stephen Miller said in a news release from the organization America First.
An American Civil Liberties Union attorney derided the decision as “flatly wrong.”
“Title 42 may only be used for public health purposes, but the States that brought this lawsuit appear to care only about COVID restrictions when they involve asylum seekers and are using the case as a transparent attempt to manage the border," said Lee Gelernt. "That hypocrisy should not be rewarded.”
Rep. Raul Ruiz, a Democrat from California and chair of the Congressional Hispanic Caucus, said the ruling was “outrageous, ridiculous, and erodes our asylum system."
Republican members of Congress hailed the ruling.
“The Courts are once again getting it right," said North Dakota Republican Sen. Kevin Cramer.
Even some in Biden's party supported keeping the pandemic restriction in place.
“Today’s decision does not change the fact that there is a crisis at the border and there must be a detailed plan that can be implemented before Title 42 is lifted," said Sen. Mark Kelley, an Arizona Democrat who is facing a tough reelection challenge.
Last month, the U.S. Supreme Court heard arguments on whether to allow the administration to force asylum-seekers to wait in Mexico for hearings in U.S. immigration court. That case, challenging a policy known as “Remain in Mexico,” originated in Amarillo, Texas. It was reinstated in December on the judge’s order and remains in effect while the litigation plays out.