SCOTUS upholds Title 42 migrant policy during court fight

Rights advocates on Tuesday expressed disappointment and frustration with a 5-4 U.S. Supreme Court order to keep the Title 42 policy used to swiftly expel migrants in place—at least until justices hear arguments for the case in February, with a final decision due by the end of June.

Title 42 is the section of the U.S. public health code that the administrations of both former President Donald Trump and President Joe Biden have used to deny millions of people typical asylum proceedings during the Covid-19 pandemic.

The decision from five right-wing members of the high court—Justice Neil Gorsuch and the three liberals dissented—comes after Chief Justice John Roberts last week temporarily blocked a planned rollback of the policy ordered by a district judge.

Melissa Crow, director of litigation at the Center for Gender & Refugee Studies, said in a statement Tuesday that “the district court got it right: Title 42 is an illegal policy that has caused irreparable harm to people seeking asylum.”

“The Supreme Court’s decision to extend the stay pending certiorari will have deadly consequences for people fleeing persecution,” Crow charged, noting that “human rights investigators have documented over 13,000 violent attacks against people expelled to Mexico under the Biden administration, a figure that represents just the tip of the iceberg.”

“With the end of Title 42 once again delayed, this toll will rise,” she said. “The Biden administration was prepared to end Title 42 last week, and service providers stood ready to welcome asylum-seekers. Instead, people seeking safety at the border are spending another holiday season languishing in dire conditions—facing freezing temperatures and the ever-looming threat of violence—with no end in sight.”

Oxfam America’s Diana Kearney argued that the Supreme Court’s “cruel” decision “is not based on our laws but rather on our country’s worst xenophobic impulses,” while Javier O. Hidalgo at RAICES called it “a damning indicator of just how far the U.S. will go as a nation in turning its back on not only the immigrant community but also the rule of law.”

Several critics of the policy vowed to keep up the fight. ACLU attorney Lee Gelernt, the lead lawyer in a case against Title 42, said that “we continue to challenge this horrific policy that has caused so much harm to asylum-seekers and cannot plausibly be justified any longer as a public health measure.”