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Border & Immigration

Advocates criticize US Supreme Court decision on Title 42

Immigrant advocates are criticizing the U.S. Supreme Court’s decision this week to temporarily block a lower court order to terminate the controversial pandemic-era health measure that restricts migration at border crossings.

The order, called Title 42, was first implemented by the Trump administration in 2020 as a measure to stop the spread of COVID-19. It allows border officials to send migrants — including asylum seekers — away from the border without due process.

It has been used to turn people away from the border more than 2 million times, according to data from Customs and Border Protection (CBP).


Immigrant advocates say thousands of those migrants have been brutalized by kidnappers and criminals in Mexico after being barred from entering the United States.

“This has caused horrendous, horrendous harm,” said Lee Gelernt, the ACLU’s lead attorney in a federal case against Title 42 that was filed shortly after Trump enacted it.

Human Rights First has tracked 13,480 reports of migrants being murdered, tortured, kidnaped, raped, and killed since being expelled to Mexico under Title 42 since President Joe Biden took over.

The order has outlived most other Trump-era immigration policies and pandemic-era restrictions. As a candidate in the 2020 election, Biden vowed to roll back all of Trump’s anti-immigration policies.

Gelernt said he and other advocates are bitterly disappointed by how Biden has handled Title 42


“When President Biden ran for president, he said, 'I’m going to have a more humane asylum system,'” Gelernt said.” That has really not materialized, and we really need this administration to step up and say in the United States we are not just going to send people back to danger without even a hearing.”

Order expanded

Biden actually expanded the order to include Cubans, Nicaraguans, and Venezuelans who were not originally included in the policy. When the administration formally tried to end the policy in the summer of 2022, a group of conservative attorneys general sued to block the termination.

Meanwhile, the ACLU’s lawsuit continued to work its way through the courts. In November, the judge ruled in the ACLU’s favor and ordered the Biden administration to terminate it by Dec. 21.

But that ruling was short-lived. The group of state attorneys general, now numbering 19, appealed the ruling, taking it to the Supreme Court.

Days before the Dec. 21 termination date, the justices agreed to rule on whether these states have the legal right to intervene in the ACLU’s case. Justices are scheduled to hear arguments in February 2023. The Justices put the termination of Title 42 on pause until they rule.

Officials from the conservative states have argued that lifting Title 42 would result in a surge in migration. Gelernt said it would be a self-inflicted surge.

“If you block the border for three years, of course, there is going to be a buildup,” he said. “But I think, ultimately, to the extent that there is an influx, it’s going to be short-term.”

The Supreme Court’s decision received universal condemnation from organizations that work directly with migrants.

Melissa Crow, director of litigation at the Center for Gender & Refugee Studies, said the decision “will have deadly consequences for people fleeing persecution."

Gelernt said it was ironic that the same conservative states that pushed back on other COVID-19-era restrictions (quarantines, mask requirements and vaccine mandates) are now fighting to keep Title 42 alive.

“These 19 states have almost uniformly opposed every type of COVID restriction,” he said. “The one type of COVID restriction they claim to support is the one that targets vulnerable asylum seekers. So I think it’s hypocritical of these states to claim that they want to keep a COVID restriction in place.”

San Diego Congressman Juan Vargas also criticized the “conservative-controlled” Supreme Court’s decision.

“Delaying the end of Title 42 will only create more chaos and place further strain on our already dysfunctional immigration system,” Vargas said.

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