This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.
On November 15, 2022, U.S. District Court Judge Emmet Sullivan blocked the Title 42 policy that has resulted in many migrants being turned away at the southern U.S. border. The same night, the Department of Justice filed a motion to stay the order for five weeks, which Judge Sullivan granted. The order will be effective December 21, 2022.
The Trump administration instituted the policy in March 2020, with the stated purpose of preventing the spread of the COVID-19 virus. Title 42 was the subject of litigation, and the Biden administration was prevented from revoking the policy. In vacating Title 42, the court noted that the Centers for Disease Control and Prevention (CDC) recognizes that current public health conditions no longer require continuation of an order to keep migrants out of the United States, and that plaintiffs would continue to face substantial harm if they were returned to their home countries. In its order vacating the policy, the court included “all orders and decision memos issued by the [CDC] suspending the right to introduce certain persons into the United States.” The court also declared the Title 42 policy to be “arbitrary and capricious in violation of the Administrative Procedure Act.”
The Department of Homeland Security (DHS) said the delay in implementation of the court’s order “will allow the government to prepare for an orderly transition to new policies at the border. But to be clear, under the unopposed motion, Title 42 would remain in place for some period.”
