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Border & Immigration

Supreme Court allows border restrictions for asylum-seekers to continue for now

Veronica G. Cardenas
/
AFP via Getty Images
A Border Patrol agent checks an asylum seeker's passport after she turned herself in, in Eagle Pass, Texas, on Dec. 19.

EL PASO, Texas – The U.S. Supreme Court, in a 5-4 ruling Tuesday, granted a GOP request to prevent the winding down of the Title 42 immigration policy – and agreed to decide in its February argument session whether 19 states that oppose the policy should be allowed to intervene in defense of it in the lower courts.

Conservative Justice Neil Gorsuch joined the court's three liberals in dissent.

The "current border crisis is not a COVID crisis," he wrote in his dissent. "And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort."

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Under Title 42, immigration authorities were able to quickly remove many of the migrants they encountered – without giving them a chance to ask for asylum protection or other protections under U.S. law. The restrictions were put in place as a public health order by former President Donald Trump's administration in March 2020 when COVID-19 was just beginning to surge in this country.

On Tuesday, the Supreme Court has ordered that the pandemic border restrictions for migrants seeking asylum known as Title 42 continue.

Under Title 42, immigration authorities were able to quickly remove many of the migrants they encountered — without giving them a chance to ask for asylum protection or other protections under U.S. law. The restrictions were put in place as a public health order by former President Donald Trump's administration in March 2020 when COVID-19 was just beginning to surge in this country.

In November, Federal District Judge Emmet Sullivan ruled that Title 42 was unlawful, and set it to end Dec. 21. But the Supreme Court paused that ruling on Dec. 19. On Tuesday, the court said that though the government cannot wind down Title 42, it is not prevented from "taking any action with respect to that policy."

It's a victory for Republican attorneys general who asked the court to keep the restrictions in place, not because of a public health emergency, but because they say removing the restrictions would likely cause a surge of illegal immigration.

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Immigration advocates have argued that Title 42 was intended to block asylum seekers' access to protections under the pretense of protecting public health. In a recent filing to the Supreme Court, the ACLU argued that however migration flows and asylum are ultimately handled, "it cannot be through the disingenuous invocation of the Nation's public health laws in the absence of any even asserted public health rationale, rejected by CDC itself."

The reality at the border

Meanwhile, migrants are continuing to arrive at the southern border in large numbers and the Biden administration has yet to announce a long-term plan on asylum.

In El Paso, the daily arrivals are dropping, but shelters are at capacity. Hundreds of migrants have ended up on the streets, and the mayor has declared a state of emergency.

The city is transforming the convention center and two vacant schools into temporary shelters with the goal of providing 10,000 beds for migrants. However, the priority is to move people out of the city quickly. Some nonprofits are busing some migrants to larger airports in Texas that have more flights to destinations people are trying to reach around the country.

The governor of Texas, Republican Greg Abbott, is busing migrants, too, but reportedly only to so-called "sanctuary cities" like Chicago and New York. And those cities are bracing for a surge in arrivals.

Angela Kocherga of KTEP contributed to this story.

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