Judge grants Homeland Security five-week reprieve to end Title 42 border asylum policy

A federal judge on Wednesday granted a five-week reprieve on his ruling ending Title 42, a key border tool that had helped the Department of Homeland Security prevent already-bad illegal immigration numbers along the Mexican border from turning catastrophic.

Judge Emmet G. Sullivan said he granted the Biden administration‘s request for the delay “with great reluctance,” and only did so because the government indicated it won’t appeal his overall ruling.

The five-week delay leaves the current policy in place until after the runoff election for a U.S. Senate seat in Georgia. The border chaos has been an issue in that campaign.

Homeland Security officials say they need five more weeks to get ready for what experts predict will be an unprecedented run at the border, now that the last remaining tool the Biden administration had been using to block some illegal immigrants is poised to disappear.

In an unsigned statement, the department said it will work on plans to handle the expected surge “in a safe, orderly and humane way.”

Administration officials had previously predicted that levels of illegal immigration across the southern border could reach 18,000 people a day. The current rate runs at about 7,000.

Title 42 is a pandemic policy originally conceived to control the entry of migrants with a communicable disease. The Trump administration used the provision to expel nearly all illegal border crossers, arguing they created an enhanced risk to U.S. public health during the global COVID-19 pandemic.

The Biden administration, while erasing other get-tough border policies left over from the Trump era, had kept Title 42 in place, drawing howls of protest from immigrant-rights activists who called the policy “racist.”

When the administration did finally move to end Title 42, a federal judge ordered it kept in place.

Now Judge Sullivan‘s decision upends that balance.

Homeland Security officials on Wednesday acknowledged the ruling will deepen already unprecedented border challenges.

“People should not listen to the lies by smugglers who will take advantage of vulnerable migrants, putting lives at risk. The border is closed, and we will continue to fully enforce our immigration laws at the border,” the department said.

To many migrants, though, the border is not closed. More than 204,000 illegal immigrants were detained by Border Patrol agents as they tried to sneak into the country in October, and experts say more than half of them were caught and then released into communities. In particular, children traveling alone, families and adults from countries outside of Mexico, Central America and Venezuela had a good chance of being released inside the U.S.

Immigrant-rights advocates argue that Title 42, under which migrants were usually sent back into Mexico, denied border crossers a right to claim asylum, and doomed many of them to violence, kidnapping or robbery back in Mexico.

Those arguments swayed Judge Sullivan, who said the government hadn’t justified continued reliance on Title 42 now that the pandemic has evolved so much from its early days.

Under his updated ruling Wednesday, he set a Dec. 20 deadline for Title 42 to expire, but security experts say the Biden administration remains unprepared for the surge of people to come.