The limits of asylum in the age of the pandemic in the hands of a federal judge | Policy
LAFAYETTE, La. (AP) — A 24-state litigator on Friday urged a federal judge to block Biden administration plans to lift pandemic-related restrictions on migrants seeking asylum, saying the ruling had been made without sufficient consideration of the effects this decision could have on public health and law enforcement.
Drew Ensign, an Arizona state attorney, told U.S. District Judge Summerhays that the lawsuit filed by Arizona, Louisiana and 22 other states to block the plan was “not about the political wisdom” behind the announcement to end the plan on May 23.
But, Ensign said, the US Centers for Disease Control and Prevention failed to follow proper administrative procedures requiring public notice and collection of feedback on the decision to end the restrictions imposed under what the ‘is called Title 42 authority. The result, he said, was that there was no due consideration of likely increases in border crossings and their possible effects, including pressure on state health systems and the diversion of border law enforcement resources from drug interdiction to controlling illegal crossings.
Jean Lin of the Justice Department argued that the CDC was within its power to lift an emergency health restriction that he said was no longer necessary. She said the order was a matter of health policy, not immigration policy.
“There’s no reason to use Title 42 as a safety valve,” Lin told Summerhays.
Summerhays gave no indication as to when he would rule, but he noted that time was running out and he told the attorneys they did not need to file post-argument briefings. In addition to deciding whether to block the policy, he will also decide whether his ruling applies nationwide or to specific states.
So far, Summehays’ rulings have heavily favored those who challenge the administration.
Migrants have been deported more than 1.8 million times since March 2020 under the federal Title 42 authority, which denied them the ability to seek asylum under U.S. law and international treaty on the grounds prevent the spread of COVID-19.
On April 1, the CDC announced it was ending the authority of Title 42 but would give border officials nearly two months to prepare. The decision drew criticism from Republicans and some Democrats who fear the administration is unprepared for a widely expected influx of migrants.
Arizona, Louisiana and Missouri quickly filed a lawsuit and were later joined by other states in the legal challenge heard on Friday. Texas had sued independently, but last week joined Arizona’s lawsuit along with North Dakota and Virginia.
After the administration acknowledged last month that it had already begun phasing out the pandemic restriction by processing more migrants under the Immigration Act instead of Title 42, Summerhays ordered a halt to the phasing out.
Appointed by then-President Donald Trump, Summerhays wrote last month that removing restrictions before May 23 would inflict “sunk costs on health care, law enforcement, detention, education and other services” on states seeking to maintain the current policy.
He also said the administration likely did not follow federal rule-making procedures when planning for the policy to end on May 23. Friday’s arguments focused on whether to keep the restrictions in place beyond that date while litigation continues.
Several migrant advocacy groups have called on Summerhays to at least allow Title 42 to be lifted as planned in California and New Mexico, two border states that have not challenged the administration’s decision.
Separately, Congress presented another potential hurdle at the end of Title 42. Several moderate Democrats joined Republicans in expressing concern that authorities are unprepared for an influx of migrants.
A large number of illegal crossings has encouraged some Republicans to try to make the border and immigration an election year issue. US authorities arrested migrants more than 221,000 times at the Mexican border in March, a 22-year high. Many of them were repeat offenders because Title 42 carries no legal or criminal consequences.
US authorities say they are preparing for up to 18,000 daily crossings, compared to a daily average of around 7,100 in March.
The authority of Title 42 has been applied unevenly across nationalities. Mexico has agreed to take back migrants from Guatemala, Honduras, El Salvador and Mexico – and a limited number from Cuba and Nicaragua. High costs, strained diplomatic relations and other considerations have made it more difficult to return migrants from other countries, who must be flown home.
Title 42 is one of two major Trump-era policies to deter border asylum.
Last month, the U.S. Supreme Court heard arguments about whether to allow the administration to force asylum seekers to wait in Mexico for U.S. immigration court hearings. This case began before another judge appointed by Trump, in Amarillo, Texas.
The number of states now participating in the pursuit has been corrected.
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