Judge issues temporary restraining order preventing phase out of Title 42

Title 42 allows the expulsion of migrants seeking asylum.

April 27, 2022, 8:15 PM

A federal judge in Louisiana formally issued a restraining order Wednesday that temporarily blocks the Biden administration from phasing out pandemic-justified border restrictions for at least the next two weeks.

The order from Judge Robert Summerhays, an appointee of former President Donald Trump, bars the Department of Homeland Security from increasing normal immigration processing beyond what they were before the administration announced the health code restrictions under Title 42 of federal law would end May 23.

Migrants have been paroled into the U.S. throughout the pandemic under Title 8 of the U.S. code, which outlines the process of expedited deportations. The Biden administration had hoped to increase expedited removal processing as the more restrictive Title 42 measures ended.

Even though there was a spike in those processed under Title 8 last month, the judge’s order does not eliminate Title 8 processing, but restricts it to the level before the Centers for Disease Control and Prevention’s April 1 Title 42 termination order.

“DHS may engage in targeted use of expedited removal to detain and remove single adult recidivist border crossers, even if such increase results in a greater percentage of migrants being processed pursuant to Title 8 authorities prior to the Termination Order," Summerhays wrote.

In this Nov. 8, 2021, file photo, asylum seekers stand near the pedestrian crossing at the San Ysidro crossing port on the Mexico-United States border in Tijuana, Baja California State, Mexico.
Guillermo Arias/AFP via Getty Images, FILE

But the order leaves open the possibility that DHS could be restricted further from exceeding the rate of normal processing that was done before the decision to end Title 42.

DHS will be required to report immigration processing numbers on a weekly basis to ensure it's in compliance.

"I will say this was just pure political theater," former White House migration advisor Tyler Moran told ABC News on Wednesday. "It has nothing to do really with immigration policy or border policy. It's really an electoral strategy."

Homeland Security Secretary Alejandro Mayorkas published a memo released by administration officials Tuesday outlining a variety of steps the administration has already started taking to prepare for a potential surge in migration once the Title 42 health order is lifted.

Kerri Talbot, deputy director of the pro-immigrant advocacy group Immigration Hub, said the restraining order should not prevent the administration from carrying out preparations.

"They can still do everything in the plan they laid out," Talbot said. "They can surge personnel, they can use expedited removal. So this entire plan can keep moving forward."

The steps outlined in the latest Mayorkas memo involve surging resources to the border, including medical supplies and personnel, speeding up case processing at U.S. Customs and Border Protection holding centers, working with local non-profits to transition migrants from government custody to local communities and stepping up efforts to crack down on human smuggling organizations.

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