The Homeland Security Department said it is complying with a judge’s ruling halting the Biden administration from putting the kibosh on the Title 42 pandemic border shutdown, delivering a win to Republicans and a reprieve to many Democrats who feared political fallout should President Biden have fully reopened the border.
Judge Robert Summerhays said in his Friday ruling that the president and his team ran afoul of the Administrative Procedure Act by cutting too many corners in its attempt to lift Title 42, a section of public health law that let the U.S. keep out most illegal border crossers because of the threat they pose of COVID-19 spread.
He sided with Republican-led states that said they would bear the brunt of a wave of migrants expected to flood the border once Title 42 ended and should have been able to weigh in with the administration before it announced last month that it was terminating the border shutdown.
The termination was to take effect Monday, but Judge Summerhays’ preliminary injunction put that on hold.
Republicans cheered the decision. Arizona Attorney General Mark Brnovich, who led the states in challenging Title 42, said it means the Border Patrol can preserve “some level of sanity” along the U.S.-Mexico boundary.
Some Democrats, particularly those facing tough reelection races in border states, welcomed the judge’s ruling, saying they, too, felt the administration was rushing to reopen the border without a plan for handling the surge of migrants, which was expected to reach as many as a half-million people a month.
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“I have made my concerns regarding the lifting of Title 42 very clear,” said Rep. Vicente Gonzalez, a Texas Democrat whose district runs from the border up to near San Antonio.
In Arizona, Sen. Mark Kelly, another Democrat, said his constituents have “paid the price” for Washington’s policy failures. He said Friday that the judge’s ruling isn’t a permanent answer.
“Today’s decision does not change the fact that there is a crisis at the border and there must be a detailed plan that can be implemented before Title 42 is lifted,” he said.
Other Democrats were enraged by Judge Summerhays’ decision.
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.
The White House, while rhetorically siding with Mr. Ruiz, is acting more in line with border-state Democrats by slow-walking a challenge to Judge Summerhays.
Although the Justice Department has announced an appeal, it has not yet filed a motion to stay the judge’s ruling.
The White House on Sunday declined to comment on that decision, instead saying only that the president continued to believe it’s time for the policy to end.
“We’re appealing,” White House press secretary Karine Jean-Pierre told reporters traveling with the president overseas.
Homeland Security Secretary Alejandro Mayorkas had insisted to lawmakers that his department would be ready to end Title 42 on time, but he acknowledged it would lead to a rise in runs at the border by migrants figuring they would have a better chance of getting into the U.S.
His department said it will abide by the judge’s ruling but continue to prepare.
“We will comply with the court’s order to continue enforcing the Centers for Disease Control and Prevention’s Title 42 Order as long as it remains in place,” the department said in an unsigned statement.
Title 42 was instituted at the start of the pandemic by the Trump administration, giving an already stiff border security team a powerful tool to block unauthorized crossers.
The CDC, the agency that triggers Title 42, concluded that illegal immigrants presented a new vector for COVID-19 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 the surging numbers of migrants who figured they could reach the U.S. under Mr. Biden’s more-relaxed policies.
In April, the CDC concluded that illegal immigrants no longer posed as high a risk for COVID-19, 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. while those numbers 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 eager to use Title 42 and has 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 sneaked 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.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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