Alejandro Mayorkas, Secretary of Homeland Security, testifies during his confirmation hearing in the Senate Homeland Security and Governmental Affairs Committee on January 19, 2021 in Washington, D.C.
A federal judge late Tuesday blocked a controversial immigration rule that was used by both the former Trump administration and the current Biden administration as an excuse to quickly expel in excess of one million immigrants in the name of public health.
In a 49-page memorandum opinion, U.S. District Judge Emmet Sullivan found the Trump-era policy known as Title 42 “arbitrary and capricious in violation of the Administrative Procedure Act.”
Originally issued in March 2020 as the COVID-19 pandemic began to rage across the country, border authorities were long able to use the Centers for Disease Control and Prevention (CDC) rule in order to bypass traditional immigration law which provides that people attempting to enter the country be processed and seek asylum.
A group of asylum-seeking families sued Department of Homeland Security Secretary Alejandro Mayorkas as the leading defendant, along with various other government officials, for enforcing the policy – which has been widely disparaged by some civil rights, civil liberties, and international law groups as both “illegal and inhumane.”
“Title 42 has caused grave harm to thousands of desperate asylum seekers,” American Civil Liberties Union attorney Lee Gelernt said after the policy was enjoined by the court. “The ruling puts an end to a policy that misused the public laws as a pretext to abandon our commitment to provide a hearing to those fleeing danger.”
Largely agreeing with the plaintiffs, Sullivan wrote that the “CDC failed to adequately consider alternatives and [that] the policy did not rationally serve its stated purpose” of protecting public health.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor,” the Bill Clinton-appointed judge wrote.
Sullivan said the government was “correct” that they have a valid interest in “preventing the introduction of communicable disease into the United States” but that the government had not chosen the “least restrictive means” of prevention by simply expelling immigrants at the border.
“[T]he Court agrees with Plaintiffs that ‘masking or testing are among the least restrictive COVID-19 measures available,” the judge noted. “Title 42 expulsions are, in the CDC’s own view, ‘among the most restrictive measures CDC has undertaken’ against COVID-19.”
Sullivan said the CDC could have likely done a lot more than kick immigrants out of the country.
“With regard to whether Defendants could have ‘ramped up vaccinations, outdoor processing, and all the other available public health measures,’ the Court finds that CDC failed to articulate a satisfactory explanation for why such measures were not feasible,” the opinion says.
The court also dinged the agency for failing to consider what would happen if asylum claims were dismissed under the policy.
“[R]egardless of the CDC’s conclusion, its decision to ignore the harm that could be caused by issuing its Title 42 orders was arbitrary and capricious,” Sullivan determined.
(Photo by Joshua Roberts/Pool/Getty Images.)
