WASHINGTON — On Tuesday, the Supreme Court said that a health measure from the time of the pandemic that limited migration at the southern border would stay in place for now. This will delay the possibility that a huge number of people will cross the border illegally.
In a short order that wasn’t signed, the justices stopped a trial judge’s decision that would have overturned Title 42, a law that has made it easy for migrants who might otherwise be eligible for asylum to be sent back quickly at the border.
The court said that arguments in the case would be heard in February and that the stay would stay in place until a decision was made. The justices said they would only answer the question of whether the 19 states, which are mostly run by Republicans and asked for the stay, could continue to challenge the measure.
Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch, and Ketanji Brown Jackson were the only justices who didn’t agree.
President Biden said that a decision on Title 42 should have been made a long time ago. He also said that the public health order should be followed in the meantime. The press secretary at the White House, Karine Jean-Pierre, said that the White House would “move forward with our plans to manage the border in a safe, orderly, and humane way when Title 42 is lifted and will continue to expand legal pathways for immigration.”
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The decision comes at a time when border towns are already struggling with a growing number of migrants from many countries, mostly in South America and Asia, whose citizens have not been subject to the expulsion policy. Even though it is only for a short time, the court’s decision gives the Biden administration a break. They had been preparing for the possibility that thousands more migrants would come every day if the policy was lifted.
This is not political football, these are human lives at stake and they have risked everything to seek asylum here.
Title 42 is a shameful policy with no real health implication. This fight will continue. https://t.co/3kWYRX3U5t
— Adriano Espaillat (@RepEspaillat) December 27, 2022
“The administration asked to end Title 42, but there was no clear plan for how they would have handled the inevitable influx,” said Justin Gest, a professor at George Mason University who studies the politics of immigration.
“The decision gives people a sense of relief that officials might not say out loud,” he said. In December, the number of migrants caught at the southern border already broke the record of 9,000 per day three times in a 10-day span. About 1,500 people, mostly Nicaraguans who had been taken hostage in large numbers in northern Mexico, crossed from Ciudad Juárez to El Paso on December 11. This put a strain on the city’s shelters and forced migrant families to sleep outside in the cold.
By keeping #Title42 in place, SCOTUS is forcing asylum seekers — including vulnerable children — into dangerous conditions.
Seeking asylum is a human right. Continuing to deny this right is both cruel and inhumane.https://t.co/WvPRXuPRDf
— Rep. Jimmy Gomez (@RepJimmyGomez) December 27, 2022
Still, people who run shelters on the U.S. side of the border laughed at the court’s decision. They said it keeps in place a policy that keeps migrants who are fleeing violence and persecution from getting the safe harbor to which they are entitled under U.S. and international law. Since the Trump administration started using the expulsion policy in March 2020, about 2.5 million migrants, including many asylum seekers, have been sent back to their home countries.
“We all know that the pandemic has nothing to do with Title 42. It’s a tool used to stop people from getting asylum, according to Ruben Garcia, who runs a group of shelters in El Paso.
“I thought the Supreme Court would say that if you want something like Title 42, you should pass a law,” he said, adding, “It’s a very sad day.”
#SCOTUS’s Title 42 order says “the stay itself does not prevent the federal government from taking any action with respect to that policy.”
That’s true so far as it goes, but there’s a separate, nationwide injunction that’s blocking the CDC’s proposed *rescission* of the policy. pic.twitter.com/hz4uc9Pxov
— Steve Vladeck (@steve_vladeck) December 28, 2022
“We are very sad for the desperate asylum seekers who won’t even get a chance to show they are in danger,” said Lee Gelernt, a lawyer with the American Civil Liberties Union who helps migrants fight the expulsion policy. “But this is only a temporary decision, and we will keep fighting in court.”
Justice Gorsuch, who was joined by Justice Jackson, said that the legal question about the states’ intervention that the court agreed to look into “is not important in and of itself and would not normally require an expedited review.”
He also said that by issuing a stay while it thought about that question, the court had, at least temporarily, taken the wrong position on the bigger question in the case, which is whether the coronavirus pandemic justifies the immigration policy. The federal Centers for Disease Control and Prevention made the rule at first to stop the disease from spreading across borders. The agency has since said that the rule is no longer medically necessary.
Justice Gorsuch wrote that the current crisis at the border is not a Covid crisis. “And courts shouldn’t keep administrative orders that were made for one emergency just because elected officials haven’t taken care of another emergency.” We are a court of law, not the last-ditch policymakers.”
Justices Sotomayor and Kagan didn’t agree with Justice Gorsuch’s disagreement, and they didn’t say why they voted against giving the stay. The court’s order was a temporary win for the 19 states that wanted Title 42 to stay in place. They did this because, they said, states often have to deal with the worst effects of a rise in border crossings. In an emergency application, lawyers for the states wrote, “If a stay isn’t granted, it will cause a crisis at the border that has never been seen before.” They also said that “daily illegal crossings may more than double” if the stay isn’t granted.
Last month, Judge Emmet G. Sullivan of the Federal District Court in Washington ruled that the measure didn’t do much to improve public health and did a lot to put immigrants in danger. He said that the program would end on December 21. A panel of three judges on the U.S. Court of Appeals for the District of Columbia said that the states had waited too long to try to get involved in the case, which was brought by migrant families who wanted to stop deportations under the health measure.
But on December 19, Chief Justice John G. Roberts Jr. issued a short stay to keep things as they were while the whole court thought about the case. The latest decision makes that stay last longer.
Most migrants were sent back to Mexico or their home countries after Title 42 was passed, especially Mexico, Honduras, Guatemala, and El Salvador. But many migrants have been allowed to stay in the country because they come from countries that have bad diplomatic relations with the United States or are from countries that Mexico has refused to accept. People from Cuba, Colombia, Russia, and, until recently, Venezuela are among these people.
“We’ve seen a big change in the population, and the number of people coming from those other countries has been steadily going up for several months,” said Diego Pia Lopez, associate director of Casa Alitas, a network of shelters in Tucson, Arizona, that is connected to the Catholic Church.
If Title 42 was no longer in place, migrants who were caught at the border would not be sent back right away, which takes only a few hours. Many more of them would be allowed into the country, and critics say they are likely to ask for asylum, even if they are coming for economic reasons and not because they are running away from danger.
A lot of them would be able to get a full review of their cases by an immigration judge, which would add to the already crowded asylum system. Most applicants would lose their cases, and critics say that by the time a court made a decision, many would have gone into hiding rather than follow an order to leave the country.
After Title 42 was put in place at the border, the number of migrants encountered at the border went up every month for 15 months. This is partly because Title 42 has made migrants try to cross the wall more than once after being turned away.
Those stuck in Mexico have dealt with kidnapping, extortion, and other violent acts by criminal organizations. Since President Biden took office, a group called Human Rights First has kept track of more than 13,000 attacks on people waiting in Mexico.
People who are desperate don’t care about the danger. Enrique Valenzuela, a top official in the state of Chihuahua, has been watching groups of migrants gather at the border from his office in Ciudad Juárez, which is right next to El Paso.
Mr. Valenzuela said in an interview, “Title 42 has been a big problem around here because people are always sent back to this side of the border.”
He thought that once word got out that Title 42 would stay in place, the number of people at the border would go down, but then it would go up again in a couple of months.
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