‘Not an immigration law.’ As Lafayette judge weighs COVID policy, asylum seekers remain in limbo | Courts

Betty Q. Hixson

A federal judge in Lafayette heard arguments Friday on whether the Biden administration should end a controversial Trump-era pandemic restriction, known as Title 42, later this month.

Judge Robert Summerhays of the U.S. Western District of Louisiana confirmed Friday his temporary restraining order that stopped the Biden administration from processing the end of Title 42 on May 23, and said he would soon issue a ruling on the preliminary injunction. 

In a hearing that made Lafayette the battleground of a nationwide debate over immigration, Deputy Solicitor General of Arizona Drew Ensign presented the arguments of more than 20 Republican-led states, including Louisiana, that sued the Centers for Disease Control in April. Department of Justice attorney Jean Lin represented the federal government’s arguments in court.

The Centers for Disease Control said its decision to end the policy was based on the wide availability of vaccines, a consistent decrease in the number of COVID-19 cases nationwide over the first three months of the year, and the availability of millions of COVID tests to prevent the spread of the virus.

But the states claimed the termination was not properly issued and say the CDC failed to consider the immigration consequences, including the burden on the states’ health care systems.

Summerhays, who was appointed by former President Donald Trump, already halted the CDC decision on April 27, and he extended his temporary restraining order Wednesday.

‘Not an immigration law’

A public health emergency order included in the Public Health Service Act of 1944, Title 42 was enacted by the Trump administration in March 2020 to prevent COVID-19 from spreading in the United States.

The order continued under the Biden administration, with some exemptions, and it still allows border officials to quickly expel asylum seekers at the border using the justification that they pose a risk to public health.

But immigration experts and pro-migrant advocacy groups say the policy has been used over the past two years to deny immigrants the right to seek asylum, which is guaranteed by the 1952 Immigration and Nationality Act.

“We can’t forget that Title 42 is not an immigration law. It’s a public health law, and it is narrowly used in specific, extraordinary circumstances,” said Aaron Reichlin-Melnick, a senior policy counsel at the American Immigration Council, a nonpartisan organization that works to strengthen the U.S. immigration system.

“There is no debate that the Biden administration has the legal authority to end Title 42. The question, in this case, was whether or not they have gone through the right procedure to do so.”

The Republican-led states wrote in a memorandum in support of the motion for a preliminary injunction that the agency failed to follow the notice-and-comment requirements for rulemaking under the Administrative Procedure Act.

The plaintiffs argued that “CDC had ample time to take public comment on revoking Title 42 and lacks any pressing need for failing to do so.”

They also claimed that the CDC termination order was “arbitrary and capricious” as it failed “to consider harms to the States and their reliance interests in the prior Title 42 Orders,” and to “consider the immigration consequences of its actions, which are virtually certain to be calamitous and necessarily poses a serious danger to public health.”

According to estimates by the Department of Homeland Security, up to 18,000 daily encounters might take place at the border when Title 42 ends, twice the current number. To handle the projected increase, the agency has recently released a plan that includes vaccinating migrants in U.S. Customs and Border Protection custody. It also increased the capacity of federal detention centers to 18,000 and added more officers at the border. 

Immigration attorneys argued Title 42 made control of the border harder rather than easier.

“The borders are not open at all,” Reichlin-Melnick said. “There are hundreds of thousands of people turned away all the time. The port of entry remains shut for most asylum seekers. The only solution to seek asylum for many is to cross the border, not in ports of entry, and hope not to be expelled.”

Immigration officials said they have used the health order nearly 1.8 million times to expel immigrants here illegally, over 400,000 of those during Fiscal Year 2022.

“People cross the border repeatedly, over and over and over again, without any real immigration consequences because Title 42 carries no immigration consequences when a person is expelled for that reason,” said Reichlin-Melnick. “They don’t get issued deportation orders, and they are not subject to prosecution for illegally entering the country.”

Under Title 42, the recidivism rate of people apprehended at the border has increased from 7% to 27%. 

“The Biden administration might not have a plan B because if the federal judge stops them from ending Title 42, they will simply not be able to move forward,” Reichlin-Melnick said.

Burden on states

The Republican-led states wrote in the memorandum in support of the motion for a preliminary injunction that the agency failed to flout the notice-and-comment requirements for rulemaking under the Administrative Procedure Act.

Deputy Solicitor General Ensign argued Friday that the CDC issued an order to end the immigration policy without considering the burden on states.

“It has been proven in courts that the burden cost of illegal immigrants lay over the states’ shoulder,” Ensign said.

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“We don’t have two different health care systems, one for the pandemic and one for the other services. That means that the extra cost related to the illegal immigrants will affect the capacity of our system to face COVID-19,” he added.

Jean Lin, the Department of Justice attorney, argued that it is not up to the CDC to consider projections of increased border crossings or how those crossings will affect states.

“Title 42 is not an immigration order but a public health tool, so the CDC decision can’t be based on the alleged projection of the number of immigrants crossing the border or the alleged rise in health care costs for the states,” Lin said.

Lin argued that the CDC had “good cause” to sidestep the notice-and-comment requirements.

She said the CDC director, who filed the termination order on April 1, gave 52 days to allow other federal agencies to adapt to the decision.

Joseph St. John, the assistant solicitor general of Louisiana, told reporters after Friday’s hearing that the Biden administration is using a double standard by “forcing the American people and lawful citizens to wear masks and get vaccinated while allowing illegal aliens to enter the country” without being properly screened.

But 58 pro-migrant advocacy groups and organizations claimed in a brief to Judge Summerhays that the Republican-led states that filed the lawsuit failed to prove any threat of “irreparable harm” related to the end of Title 42.

“Americans and permanent residents can travel back and forth. Tourists can enter the country. Visa holders can travel. At this point, only asylum-seekers are blocked, and they are blocked by Title 42,” said Mary Yanik, an attorney for Tulane Immigrant Rights Clinic. 

“This is part of the attempt by these conservative states to run to the court to prevent the immigration policy from working as it is supposed to do.”

Detained in Tijuana, represented in Lafayette

The case became more complicated Tuesday when a family seeking asylum at the California-Mexico border and Innovation Law Lab, a nonprofit organization that seeks to advance refugee and immigrant justice, filed a motion to intervene in the lawsuit.

The motion argued that any court order keeping the Title 42 expulsion order in place should not apply to those seeking asylum in California or New Mexico ports of entry. It asked that the injunction by Judge Summerhays would be focused on the states involved in the lawsuit, and not nationwide.

“What we tried to make clear was that Texas, Arizona, or Louisiana shouldn’t force other bordering states like California and New Mexico to keep Title 42 active,” said Matthew Vogel, Supervising Attorney at the National Immigration Project of the National Lawyers Guild, and co-counsel in the case.

Vogel argued that the immigration policy represents “a blockade against asylum seekers and the right to seek asylum guaranteed by U.S. law.”

Alicia De Los Angeles Duran Raymundo and Kevin Alexi De Leon and their 6-year-old daughter still reside in a shelter in Tijuana, near the California-Mexico border. Since January, the family has been trying to cross the border only to be told it is closed because of Title 42.

The family fled El Salvador and traveled more than 3,000 miles after members of the Surenos 18 gang threatened to kill Kevin, they said. Kevin’s father was killed and burned when Kevin was a child, according to Vogel.

“We’ve tried many times to ask for asylum, but they just tell us the border is closed because of Title 42, that there is no asylum in the United States,” the family said in a prepared statement. “People like us are only seeking safety.”

As Summerhays ordered the two parties to respond to the motion, both the Department of Justice and the Republican-led states opposed the intervention. But Monika Y. Langarica, staff attorney for the UCLA School of Law’s Center for Immigration Law, which represented the family, was heard by Summerhays during Friday’s hearing.

Why it matters in Louisiana

The decision over Title 42 will affect the broadly criticized detention system in Louisiana. Over the past five years, private prison firms, including GEO Group and LaSalle Corrections, run lucrative ICE detention facilities in rural Louisiana, detaining thousands of asylum seekers.

Pro-migrant advocacy groups have consistently decried the conditions inside the facilities, and in March, ICE announced its intention to scale back the use of Winn Correctional Center.

In an interview with The Advocate in March, Vice President Kamala Harris admitted the White House was aware “there have been abuses.”

Whether Judge Summerhays will decide to block the Biden administration from ending Title 42 or not, private prison firms will continue to take advantage of a funding mechanism known as guaranteed minimum that compels the federal government to pay them a minimum for beds that may not be filled.

“The arguments Friday were mainly about whether Title 42 should be ruled inactive or not,” said Michelle MacFadyen, Transportation Coordinator for Louisiana AID, a nonprofit organization that helps asylum-seekers released from Louisiana and Mississippi detention centers. “But the underlying argument that was not mentioned was, ‘Do we want to let immigrants who are seeking safety into our country or not,’ ” she said.

“It is disappointing to hear the immigrants characterized as criminals, drug smugglers and more. From my experience, I would characterize them as filled with determination, bravery and grit.”


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