A US judge ruled Tuesday that a pandemic-era order used to remove hundreds of thousands of migrants to Mexico was illegal, a decision that could have major implications for US border management.
In a 49-page opinion, US District Court Judge Emmet Sullivan called the policy “arbitrary and capricious” and violated federal regulatory law.
The ruling will complicate President Joe Biden’s strategy to deter record border crossings. On Tuesday night, the administration filed an unopposed motion to delay implementation of the decision for five weeks to allow it to move additional resources to the border and coordinate with state and local governments and nonprofit organizations.
The order has been used primarily to expel Central Americans and Mexicans, but last month the administration announced it would also begin sending Venezuelans stuck at the US-Mexico border back to Mexico. Officials said the new approach to Venezuelans led to a significant drop in arrivals from the South American country.
Sullivan’s ruling comes just three days after Chris Magnus, the top US border official, resigned under pressure. Facing hostile questioning from Republicans in Congress on Tuesday, US Homeland Security Secretary Alejandro Mayorkas touted Biden’s border enforcement record, saying the administration had “removed or expelled more people than United States than ever.
The order, known as Title 42, was implemented under the administration of then-President Donald Trump in March 2020 early in the COVID pandemic. Biden continued to use the measure after taking office, expelling immigrants some 2 million times, though many crossed repeatedly.
The US Centers for Disease Control and Prevention (CDC) issued the order, but later, under Biden, said it was no longer necessary to stop the spread of COVID.
However, a Louisiana-based federal judge ruled in May that the Biden administration could not end it.
Lee Gelernt, a lawyer for the American Civil Liberties Union, which represents the removed families, said the Louisiana judge’s ruling was now moot and that ending the removal order would “literally save lives.”
The US Department of Homeland Security said it would continue to fully enforce immigration laws at the border.
‘Double edged sword’
Sullivan, a former President Bill Clinton appointee in Washington, DC, wrote that the policy violated a federal law governing rules known as the Administrative Procedure Act.
Sullivan said it was “unreasonable for the CDC to assume that it can ignore the consequences of any action it decides to take,” especially when those “actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor.”
Officials knew that implementation of the order would likely lead to migrants being removed to locations with a “‘high probability'” of “‘persecution, torture, violent assault, or rape,'” Sullivan wrote.
Rosa María González, an opposition lawmaker who heads the migration committee of the lower house of the Mexican Congress, said the ruling was likely to be a double-edged sword for Mexico.
While it should ease pressure on Mexico’s northern border by reducing the backlog of people there under removal orders, he said, it also risks encouraging more people to travel north to file asylum claims in the United States.
