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Supreme Court Keeps Title 42 Policy in Place for Now

WASHINGTON — The Supreme Court today allowed Title 42 expulsions, which were set to end this month, to continue instead. Title 42 has been used by the federal government to expel asylum seekers without a hearing since the Trump administration instituted it in March 2020.

The American Civil Liberties Union, Center for Gender & Refugee Studies, Texas Civil Rights Project, RAICES, Oxfam America, ACLU of Texas, and ACLU of the District of Columbia challenged Title 42 expulsions under both the Trump and Biden administrations.

The federal trial court invalidated the Title 42 policy, finding that it violates the Administrative Procedures Act by failing to account for the grave harm Title 42 imposes on asylum seekers and continuing long after there is any public health justification for it. Today’s decision puts the lower court ruling on hold while other issues are litigated on appeal.

The following are reactions to the Supreme Court ruling:

ACLU attorney Lee Gelernt, the lead lawyer in the Title 42 challenge: “The Supreme Court has allowed Title 42 to remain in place temporarily while the case is ongoing, and we continue to challenge this horrific policy that has caused so much harm to asylum seekers and cannot plausibly be justified any longer as a public health measure.”

Melissa Crow, director of litigation at the Center for Gender & Refugee Studies: “The Supreme Court’s decision to extend the stay pending certiorari will have deadly consequences for people fleeing persecution. The district court got it right: Title 42 is an illegal policy that has caused irreparable harm to people seeking asylum. Every day that the expulsion policy remains intact, vulnerable individuals are left in legal limbo and exposed to grave dangers. Human rights investigators have documented over 13,000 violent attacks against people expelled to Mexico under the Biden administration, a figure that represents just the tip of the iceberg. With the end of Title 42 once again delayed, this toll will rise. The Biden administration was prepared to end Title 42 last week, and service providers stood ready to welcome asylum seekers. Instead, people seeking safety at the border are spending another holiday season languishing in dire conditions — facing freezing temperatures and the ever-looming threat of violence — with no end in sight.”

Karla Marisol Vargas, senior attorney with the Beyond Borders Program at the Texas Civil Rights Project: “We are incredibly disappointed by today’s ruling. Every day the Biden administration continues the use of Title 42 — which denies individuals fleeing violence and persecution the chance to legally request safety at our borders — is a day that leads to more needless deaths. As a COVID control strategy, a humanitarian policy, and a border policy, Title 42 has not only failed but caused irreparable harm on a massive scale. People have continued to make the long and dangerous journey to the border, because for many Black, Indigenous, and Brown communities, the United States remains their last, best chance at survival. While we’re disappointed by this outcome, we are not deterred. We will continue to fight for justice until individuals seeking safety are welcomed with dignity, respect, and compassion.”

Diana Kearney, senior legal advisor at Oxfam America: “The Supreme Court’s decision to resuscitate Title 42 is not based on our laws but rather on our country’s worst xenophobic impulses. This cruel ruling ignores our nation’s legal obligations to respect fundamental human rights, and exposes some of the world’s most vulnerable people to incredible violence. While this is a significant blow, we will continue working with our partners on behalf of all asylum seekers to ensure the rights are respected.”

Javier O. Hidalgo, director of Pre-Removal Services at Refugee and Immigrant Center for Education and Legal Services (RAICES): “Today’s Supreme Court ruling on Title 42 is a damning indicator of just how far the U.S. will go as a nation in turning its back on not only the immigrant community but also the rule of law. Seeking asylum is a legal and human right. But Title 42 is not the only threat to that right. Elected officials across both sides of the aisle have made the U.S. government’s anti-immigrant stance clear. Using an emergency public health policy as a tool to restrict immigration for three years, as well as Congress’ veiled failed attempt to codify the policy in the latest omnibus spending bill, shows us that they will use whatever backdoor means they can to violate the U.S.’s alleged promise of refuge without discrimination.”


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