Updates: April 12, 2022
Title 42 wind-down challenged in Louisiana and Texas
As we previously reported, on April 1 the CDC issued a 30-page order announcing the wind-down of the “Title 42” expulsion policy. Title 42 was first implemented by the Trump Administration in March 2020 and now set to expire on May 23, 2022, and has authorized U.S. border officials to “expel” (summarily deport) most migrants who come to the southern border without giving them the opportunity to apply for asylum, as is their legal right, or other forms of humanitarian protection, under the pretense of preventing the “introduction” of COVID-19 into the United States.
As predicted, red states quickly reacted with lawsuits challenging the end of the Title 42. Arizona, in fact, could not even wait for the next business day—it filed its challenge to the end of Title 42 on Sunday, April 3. Arizona’s complaint (filed on behalf of Louisiana and Missouri as well) alleges that the Title 42 termination is unlawful on purely procedural grounds. Since Arizona has not had great success filing lawsuits within its own borders, it (again) went shopping for a more favorable venue: this time, the Western District of Louisiana, which is within the Fifth Circuit Court of Appeals. We’ll be tracking Arizona’s southern experiment here.
A few days later, on April 7, Texas informed Judge Pittman that it would be amending its lawsuit before him to now challenge the Title 42 termination, also on purely procedural grounds. As you will recall, last month Judge Pittman granted Texas’s request to preliminarily enjoin (block) the CDC’s exception in prior Title 42 expulsion orders for unaccompanied migrant children. Judge Pittman has scheduled an in-person status conference in the case for tomorrow.
Arizona and Texas—both of which, it should be noted, have implemented statewide prohibitions on pandemic-related public health measures—have stated that they will each seek a preliminary court order requiring the Biden Administration to maintain the CDC’s expulsion policy beyond the current May 23 expiration.
Sixth Circuit stays (pauses) preliminary injunction of ICE enforcement guidance, but TX decision looms
Last month, a district judge in Arizona granted a preliminary injunction blocking nationwide immigration enforcement guidance the Biden Administration issued for ICE to consider when prioritizing cases for enforcement and deportation. Last week, the Cincinnati-based Sixth Circuit Court of Appeals heard oral argument on the Biden Administration’s request to “stay” (pause) that preliminary injunction. Today, it granted that request, pending appeal.
Meanwhile, a decision could be issued any day now in Texas’s challenge to the same ICE enforcement guidance, in which post-trial briefing concluded last week.