Three states sue Biden administration over ending Title 42 policy

Washington, DC – Three states have sued the Biden administration over its plans to lift Title 42, a contentious border policy that has led to the expulsion of the vast majority of people trying to file asylum claims in the United States.

Missouri, Arizona and Louisiana – three Republican-governed states – announced on Monday that they are suing the administration of President Joe Biden, arguing that ending the pandemic-era restriction would result in an “unprecedented crisis at the United States southern border”.

“Today, Missouri, Arizona, and Louisiana filed suit against the Biden Administration for rescinding Title 42 amid one of the worst border crises in this country’s history,” Missouri Attorney General Eric Schmitt said in a statement.

“Title 42 is a crucial tool for controlling the influx of illegal aliens at our Southern border,” he said.

The development comes after the Biden administration announced on Friday that it would lift Title 42, a public health order put in place under former President Donald Trump back in March 2020. Under the measure, announced at the height of COVID-19 lockdowns in the US, the majority of asylum seekers apprehended at the US-Mexico border have been expelled immediately back to Mexico or their country of origin, without the chance to file asylum claims.

The policy is based on recommendations from the US Centers for Disease Control and Prevention (CDC), citing the need to protect the country from the further spread of the coronavirus pandemic.

Thousands of migrants, most from Central America, are believed to be in Mexico waiting for the US border to reopen [Veronica G Cardenas/Reuters]

On Friday the CDC updated its guidance, saying that given the wide availability of tools to combat the virus in the US, it was no longer necessary to block the entry of migrants into the country.

Following the CDC update, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas announced that Title 42 will be rescinded by May 23, but that expulsions of adults and families will continue until then.

The Biden administration said that the delay would give officials time to ready the border with more agents and personnel to facilitate the likely higher numbers of arrivals.

“I think it’s important to note for any critics in any lawsuits that Title 42 is a public health directive,” White House Press Secretary Jen Psaki said on Monday.

The administration’s objectives at this point are improving border processing and COVID-19 mitigation measures and “continuing to work with other countries in the Western Hemisphere to manage migration and address root causes” of migration, Psaki said.

But immigrant advocates have denounced the delayed end date, arguing that continuing to expel people even after the CDC ruled it was no longer necessary was a gross violation of US’s legal and moral responsibility towards people fleeing violence and political persecution.

More than 1.7 million expulsions were conducted under Title 42 since March 2020. Human Rights First, a US-based rights group, has documented nearly 10,000 reports of kidnapping, torture, rape, and other violent attacks against people sent to Mexico through mid-March this year.

The announcement came after the US rolled back the majority of pandemic restrictions following weeks of declining COVID-19 infections and higher vaccination rates.

The rule also became more difficult to defend after the US recently began exempting Ukrainians from Title 42 expulsions at the US-Mexico border.

The development, however, raises concerns that it could lead to large number of migrants streaming towards the border. It also came at a time when migrant arrivals at the border were already high.

Last week, DHS said some 7,100 asylum seekers were arriving daily at the US-Mexico border – much higher than the February rate, when the daily average was 5,900.

Thousands of asylum seekers and migrants – most from Central America but many from Haiti and other countries – have been living in shelters and squalid migrant camps in Mexico for months and even years, waiting for the US to reopen its borders.

migrants at border
More than 1.7 million Title 42 expulsions were conducted since March 2020 [Jose Luis Gonzalez/Reuters]

Friday’s announcement drew an immediate response from Republican leaders, who have seized on the high numbers of migrant arrivals to attack Biden and say he is endangering the security of the US.

“Today’s decision confirms that President Biden has abdicated his responsibilities and is actively working to make the border crisis worse,” Republican House Minority leader Kevin McCarthy said in a statement on Friday.

“From day one of his administration, he has failed to protect our nation’s security and to secure the border.”

It is not the first time that Republican-led states have tried to stop Biden from making changes to the nation’s border policies.

Last year, Texas and Missouri sued the Biden administration over a move to end the so-called “Remain in Mexico” programme, a policy that forced asylum seekers to wait for their US court dates in Mexico.

Biden administration officials said the programme, also known as the Migrant Protection Protocols, needlessly put asylum seekers in harm’s way by forcing them back into dangerous Mexican border towns.

Republican leaders argued the policy was effective in deterring “frivolous” asylum claims.

In August last year, a Trump-appointed judge in Texas sided with the two states and ordered the programme restarted. Dozens of migrants have been returned to Mexico under so-called Remain in Mexico 2.0.

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