After protracted legal battle, Title 42 to be lifted December 21

WASHINGTON, D.C. — Last week a district judge issued a ruling striking down Title 42, the controversial pandemic-era law that called for the immediate expulsion of migrants as a public health measure. The Department of Justice quickly filed a motion to stay, allowing for more time before the ruling would take effect. District Judge Emmett Sullivan granted the stay for an additional five weeks “WITH GREAT RELUCTANCE,” per court filings. The policy will be lifted on December 21.

Title 42 is a law with roots in late-19th century disease and immigration panics, originally created as a way to stem the flow of typhus, cholera and other now-curable diseases. The law specifically invoked by the Trump administration at the start of the COVID-19 pandemic was a part of the Public Service Health Act of 1944, but was never put into action until 78 years after it was passed.

Title 42 grants the surgeon general and the president of the United States the ability to “to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.”

The law has allowed immigration authorities to “expel” undocumented migrants without exceptions for asylum within hours of their apprehension. In the Big Bend, Title 42 has led to a nightly practice of dropping off migrants at the Presidio International Bridge and instructing them to return to Mexico. Title 42 led to an uptick in recidivism, meaning that many people processed under the law attempt to cross the border again — or many more times. 

The same day that Title 42 was struck down, Texas Governor Greg Abbott celebrated the first busload of migrants sent from Texas toward sanctuary cities elsewhere in the country. Abbott has previously championed the law, though none of his official statements on the matter mention the COVID-19 pandemic at all. 

Back in May — when Title 42 was originally slated to be lifted — 24 states sued the Biden administration, putting a temporary stop to the process of ending the policy. Many of the plaintiff states are nowhere near the border, but some — like Missouri and South Dakota — attributed local issues to the fact that undocumented migrants ended up living and working in their state.

The nonprofit Human Rights Now published a report in June 2022 detailing all of the issues the organization felt were raised by the law. Human Rights Now argued that the policy puts refugees in danger by forcing them to remain in situations they were fleeing, and forces many migrants to seek more dangerous routes into the country. “The continued use of Title 42 is preventing U.S. immigration laws from being upheld, prolonging disorder at the border, and inflating CBP encounter statistics due to repeat entry attempts by migrants,” the report reads.

District Judge Emmett Sullivan considered — and agreed with — many of these arguments in his ruling in Huisha-Huisha v. Gaynor.  “It is undisputed that the impact on migrants was indeed dire,” he wrote. 

Sullivan crafted much of his ruling around the fact that Title 42 — originally invoked to prevent the spread of COVID-19 — had been allowed to remain in place while both science and public policy shifted in response to the pandemic.

The judge felt the law arbitrarily punished “0.1% of land border travelers” concentrated along the U.S.-Mexico border. “Millions of others were permitted to cross the border under less restrictive measures, even if they traveled in congregate settings such as cars, buses and trains,” Sullivan wrote. 

The response has been polarized — while human rights groups like the ACLU declared the ruling “a major victory”, the New York Post anticipated an “avalanche” of migrants coming to the border and Fox News projected, more conservatively, a “massive group.”

On the local level, Father Mike Wallens of Marfa’s St. Paul’s Episcopal Church has responded to the news by reconvening a coalition of local religious leaders and immigration authorities prepared to support an influx of asylum seekers. After the spring’s false alarm, he admitted that there might be another “blockade” — but that the organization was preparing for Sullivan’s ruling to remain in place. 

The coalition helps coordinate rides, housing and other services for asylum seekers on their way to reunite with friends and family in the United States. While many of the people served are from Central America, refugees from as far away as Ukraine and Afghanistan wind up in the Big Bend as well. “Our role is to get them to where they need to go as quickly as possible,” he said. 

Wallens’ views are tied to his religious convictions. “All we’re trying to do is welcome people with dignity and respect. It’s been extremely painful and frustrating talking to people who have been caught in the middle of this unnecessary law,” he said. “We’re hopeful and excited to actually follow through this time.”