No US Covid Memorial Planned Despite One Million Dead

A federal judge on Friday blocked the Biden administration from lifting a pandemic-related health order whose scheduled expiration on Monday would have thrown open the doors of the United States to asylum seekers at the border for the first time in more than two years.

The ruling means further delays for thousands of people waiting for a chance to seek refuge in the United States, but it averts a potential crisis on the border by giving the administration more time to roll out its plan to handle the large numbers that are expected. Department of Homeland Security officials have said they were preparing for as many as 18,000 migrants a day, compared to 8,000 currently, if the order were lifted.

“The Biden administration is probably breathing a sigh of relief because they were not ready for the rule to be lifted,” said Wayne Cornelius, director emeritus of the Center for Comparative Immigration Studies at the University of California, San Diego.

The sweeping public health measure, known as Title 42, was put into place in March 2020 to control the transmission of the coronavirus across the border. Under its authority, thousands of migrants arriving at land borders have been swiftly expelled, without an opportunity for those fleeing danger and persecution to request humanitarian protection in the United States.

But since the Centers for Disease Control and Prevention said in April that it would suspend the order, citing the availability of effective vaccines to combat the coronavirus, concern has shifted to the potential for overcrowding and turmoil at the border should Title 42 expulsions no longer be enforced.

Judge Robert R. Summerhays of the U.S. District Court for the Western District of Louisiana issued a nationwide preliminary injunction directing the administration to keep the rule in place for now, effectively postponing what would almost certainly be tens of thousands of new migrant admissions.

Even with the public health order in place, US Border Patrol agents are encountering near-record numbers of people who either crossed on their own or were allowed to enter under various Title 42 exemptions. A total of 234,088 migrants crossed the southern border in April.

Twenty-four states, led by Arizona, Louisiana and Missouri, sued on April 3, two days after the CDC announcement lifting the public health order, arguing that Title 42’s continued enforcement was needed to avert the threat of a “wave of illegal migration and drug trafficking ”and that returning to normal enforcement practices would cause irreparable harm.

In a 47-page decision, Judge Summerhays, an appointee of President Donald J. Trump, whose administration initially adopted the public health order, found that lifting the order would cause irreparable harm by increasing the health care and education costs that the states would have to bear as a result of the arrival of a large number of new migrants. And the judge ruled that the states were likely to succeed in their argument that the CDC had not followed proper rule-making procedures under federal law.

“The court concludes that the public interest would be served by a preliminary injunction preventing the termination of the CDC’s Title 42 orders,” the judge wrote.

Republican state leaders praised the decision. “The federal court stepped in to protect our nation when the Biden administration failed to do so,” Gov. Doug Ducey of Arizona said in a statement on Twitter.

But some legal analysts said the ruling left the federal government unable to comply with its legal obligations under both US and international law to offer asylum to migrants who meet the standards under the law.

The injunction “will continue to imperial lives and block access to the asylum system,” said Monika Y. Langarica, a staff attorney at the Center for Immigration Law and Policy at the University of California, Los Angeles.

The Justice Department said it would appeal the ruling, and the Biden administration said it would continue to enforce the expulsions pending the outcome. “The authority to set public health policy nationally should rest with the Centers for Disease Control, not with a single District Court,” Karine Jean-Pierre, the White House press secretary, said in a statement.

Government lawyers had argued in court that the CDC had determined that Title 42 authority was no longer warranted, and that forcing the government to enforce the policy amounted to an intrusion on the agency’s handling of the pandemic.

But the court ruled that the order had become about more than public health during the pandemic. “Title 42 is certainly a public health measure” the judge wrote. “But, as defendants acknowledge, it protects public health by regulating immigration.”

A team of lawyers had sought to persuade the judge to limit his injunction only to those states asking for it, a move that would have allowed Title 42 to be lifted in states such as California and New Mexico, and some along the northern border with Canada . But the judge rejected that request this month, and his ruling applies to the entire country.

Credit …Tamir Kalifa for The New York Times

There have been about two million expulsions since March 2020 under the order, affecting many people who would otherwise have been admitted to the United States for an assessment of their asylum claims or placed into deportation proceedings. Those processes often take months or years.

The public health order was initially used to swiftly turn back migrants from Mexico and Central America by busing them back to Mexico. But under the Biden administration, large numbers of migrants from Haiti and other countries have also been swiftly deported, typically on planes, without hearings.

As the pandemic subsided, human rights advocates and progressive lawmakers raised intensifying concerns that Title 42 was being used as a tool to curb immigration, in violation of international law, rather than to stop the spread of Covid-19.

The announcement on April 1 by the CDC that the measure was no longer warranted drew swift, loud rebukes from Republicans who predicted that the United States would be overwhelmed with border crossers, including several thousand already waiting in Mexico and thousands more likely to move north from their home countries.

Scenes of chaos at the border, even if short-lived, could be damaging for Democrats heading into a hotly contested midterm election, even though many of them, including the Senate majority leader, Chuck Schumer of New York, pushed for lifting Title 42 earlier this year. Republicans have made border security a core campaign issue, and have demanded a vote on a Senate amendment that would ensure the public health order remains in place before voting on a package that allocates funds toward vaccines, therapeutics and other coronavirus treatment. Some Senate Democrats have also expressed concerns about the administration’s plans to lift the order, making the amendment likely to pass.

The Justice Department could seek an emergency stay of Judge Summerhays’s injunction from the U.S. Court of Appeals for the Fifth Circuit, which would almost certainly turn it down, and then the case could land in the Supreme Court. Alternatively, the administration could wait until Congress votes on the amendment, and if it passes, ask the judge to set aside the case as irrelevant.

In April, the Department of Homeland Security said that it was not possible to predict the number of migrants who would show up at the border after Title 42 expires, and that it could vary widely from one section of the border to another.

Homeland Security officials have said they were preparing for as many as 18,000 migrants a day, while most predictions hover around 12,000.

The Biden administration unveiled a plan in April to handle the influx by increasing border personnel, streamlining migrant processing to prevent overcrowding and imposing strict penalties on border crossers who cannot establish a legal basis to remain in the United States.

The plan, a 20-page memo, also targets migrant smugglers for criminal prosecution, outlines a new collaboration with nonprofits that shelter migrants after they are released from immigration custody and coordinates more widely with countries through which migrants pass en route to the United States

Alejandro N. Mayorkas, the homeland security secretary, has defended the strategy while conceding that the border could come under more strain and asserting that the broken immigration system requires an overhaul, which Congress has failed to deliver for decades.

Credit …Adriana Zehbrauskas for The New York Times

Immigration has bedeviled Mr. Biden since he entered office promising to undo the harsh border policies of his predecessor. But the prospect of an abrupt end to Title 42, along with a large wave of border crossings that has occurred despite the public health order, turned the issue into an urgent matter of national debate. Polls have shown that more than half of Americans oppose lifting it.

“The court’s decision to block the CDC from ending Title 42 will permit the Biden administration to shore up its post-Title 42 plan and seek additional resources from Congress if necessary,” said Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, a pro-immigration group.

“But as the last two years of Title 42 have shown us,” he said, “a failed policy is not going to get any better with time, and the longer Title 42 is kept in place the harder it will be for any administration to manage the border. ”

In the first six months of the fiscal year that started in October, border officials have encountered more than one million migrants at the southern border, about half of whom were removed under the policy.

The public health order has always been applied unevenly, with the government allowing some migrants in under humanitarian exemptions and a variety of other factors that have limited its options.

Along many stretches of the border, for example, Mexican states have refused to accept the return of migrants with young children; along others, states have refused to take back people from far-flung countries, such as Brazil, India and Senegal, compelling the United States to release them inside the country with court hearings for deportation.

While challenging in the short term, lifting Title 42 could result in a decrease in unauthorized crossings in the long term if unauthorized crossers are once again prosecuted for illegal entry instead of being simply expelled, with the possibility of detention and a permanent bar of admission to the country.

The public health order has had the unintended effect of encouraging repeated illegal entries, especially by single adults, because migrants are being quickly processed and returned to Mexico – sometimes within minutes of being intercepted by agents – only to try to cross again. About three out of 10 adults are recidivists, and some of them have tried as many as 10 times.

From April through September 2020, 47 percent of single adults apprehended by agents had been encountered in the previous 12 months, more than double the share between 2014 and March 2020, before Title 42 was put into place, according to an analysis by the nonpartisan Migration Policy Institute.

Eileen Sullivan spirit Emily Cochrane contributed reporting. Susan C. Beachy contributed research.

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