A federal judge put the kibosh on the Biden administration’s plans to reopen the border to unauthorized migrants, ruling Friday that the president’s team cut too many corners when it decided to end the Title 42 policy.
Judge Robert Summerhays, a Trump appointee, said the Biden administration conceded it will see a surge of new migrants with the end of the policy, and states who will have to deal with the increased numbers will suffer, whether they’re on the border or in the interior.
The states should have been given a chance to weigh in, and failing to do that violates the Administrative Procedure Act, he ruled. He rejected the administration’s claims that it didn’t have time to go through the usual process, saying the government gave inconsistent reasons.
“The Plaintiff States have demonstrated harm that will result from the Termination Order and that, despite the impact of the order on the states, they were not able to protect their interest by participating in the notice-and-comment process mandated by the APA,” the judge wrote in issuing a preliminary injunction.
Title 42 allows border agents and officers to quickly expel illegal immigrants in a matter of hours, rather than going through more fulsome processing that risked a broader spread of COVID-19.
Arizona Attorney General Mark Brnovich, who led the case against the Biden administration, praised the judge for “upholding the rule of law and helping maintain some level of sanity as we continue to battle the Biden-made border crisis.”
“Today’s ruling is a significant win as Title 42 is one of the few policies that is actually working,” he said.
The judge’s ruling had been expected, and it is likely even a relief to some Democrats who had worried about their election prospects amid the wave of illegal immigration experts said would come if Title 42 ended.
But the decision is a serious blow to President Biden, marking the latest of his immigration policies to fall victim to the Administrative Procedure Act, a federal law requiring careful decision-making by the Executive Branch.
Immigration advocates were enraged by the ruling.
Rep. Raul Ruiz, California Democrat and chair of the Congressional Hispanic Caucus, said the decision was “outrageous, ridiculous, and erodes our asylum system.”
“Title 42 denies asylum seekers their legal rights under American law to due process in the U.S. and goes counter to international humanitarian norms and values,” he said.
Murad Awawdeh, executive director of the New York Immigration Coalition, said Title 42 was “blatantly racist.”
Judge Summerhays’ ruling means the administration must continue to use Title 42 to expel some illegal immigrants who sneak into the country. That by no means solves the current border crisis, with massive numbers still attempting to come — and many of them succeed.
Title 42 was instituted at the start of the pandemic by the Trump administration, giving an already stiff anti-illegal immigrant team a new powerful tool to block unauthorized border crossers.
The Centers for Disease Control and Prevention, the agency that triggers Title 42, concluded that illegal immigrants presented a new vector for COVID cases, and the dangers of holding them in cramped border facilities for hours or days carried an even bigger risk for spread.
The Biden administration, while wiping away most other Trump immigration policies, has kept Title 42 in place for 16 months. Border Patrol agents said it was the only tool they had to tamp down on the surging numbers of migrants who figured they could reach the U.S. under the more relaxed policies President Biden ushered in.
But in April, the CDC concluded that illegal immigrants no longer posed as high a risk for COVID, figuring that the waning omicron surge and availability of at least one dose of vaccine at the border to new arrivals were enough to mitigate risks.
In the weeks since, infection rates have risen again in the U.S., but reported rates are still low in key sending countries like Cuba, Mexico and Colombia.
Still, the U.S. has maintained its general bar on legal arrivals at the border who don’t have proof of vaccination, meaning illegal immigrants who jump the border and make asylum claims will get better treatment than those who try to come legally.
At the border, Title 42 had been wildly successful under the Trump administration when, combined with other policies, it helped Homeland Security quickly oust more than 90% of illegal crossers.
The Biden administration has been less reluctant to use Title 42 and has also been constrained by a less-cooperative approach from Mexico.
In April, Customs and Border Protection tallied more than 234,000 illegal immigrants nabbed at the border. About 202,000 of them were caught by Border Patrol agents as they snuck across, and another 32,000 were encountered by officers as they showed up at border crossings but lacked permission to enter.
About half were quickly released into the interior, and 20,000 more were turned over to Immigration and Customs Enforcement. Most of those ICE transfers are also being released.
That means that the success rate of illegal immigrants in managing to gain a foothold in the U.S. right now is far better than 50-50, given recidivism rates and “gotaways,” or those who avoid detection altogether.
Analysts expect the success rate to increase once Title 42 does end.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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