Federal court delays end of Title 42 border policy until December amid fears of migrant surge

A federal court has delayed an order that ends expulsions of illegal immigrants under the Title 42 public health order until December after the Department of Homeland Security said it needed time to prepare for the transition away from the order amid fears it will lead to an even greater migrant surge.

U.S. District Court Judge Emmet Sullivan ruled Tuesday that the government can no longer apply Title 42, a Centers for Disease Control and Prevention (CDC) order that allows for the rapid removal of migrants at the border due to the COVID-19 pandemic.

The judge said the policy, implemented during the Trump administration and continued to an extent by the Biden administration, was in violation of the Administrative Procedures Act. The Biden administration asked the judge for a delay of five weeks to prepare. 

The American Civil Liberties Union, which filed a lawsuit against the order, did not oppose the delay, and Sullivan said he was granting the request ‘with great reluctance.’

‘Today, the court granted a stay of the court’s order vacating the CDC’s Title 42 public health order,’ DHS said in a statement. ‘Title 42 will remain in place during the period of the stay, allowing the government to prepare for a transition and to continue to manage the border in a safe, orderly and humane way.

‘While the stay is in effect, DHS will continue to process individuals in accordance with the CDC’s Title 42 public health order and expel single adults and family units encountered at the Southwest Border.’ 

There is no indication the overall policy is being challenged.

The U.S. has been hit by a historic border crisis since the beginning of 2021. There were more than 2.3 million migrant encounters in fiscal year 2022 and over 1.7 million in fiscal 2021.

Customs and Border Protection (CBP) announced this week there were more than 230,000 encounters in October alone, believed to be a historic high for October. Multiple Border Patrol sources have expressed concern that ending Title 42 will lead to a further increase in migration to the border as migrants believe they are now less likely to be expelled and more likely to be released into the U.S.

‘A federal judge has just ended Title 42, and the Biden Administration has done absolutely nothing to prepare for this outcome,’ the National Boarder Patrol Council said on Twitter. ‘If you think things are bad now, just wait for the s— show that’s coming.’

The Biden administration attempted to end Title 42 earlier this year but was blocked by a federal judge. It had also faced massive criticism from lawmakers, including from some Democrats, who warned that doing so would be catastrophic without a serious plan in place as an alternative.


Last month, the administration announced that, as part of an agreement with Mexico, it was expanding Title 42 to include Venezuelan nationals who had previously not been removed under Title 42 and whose numbers had ballooned in previous weeks. The administration recently said the numbers of illegal Venezuelan migrant crossings had been significantly reduced as a result.

The Biden administration has come under heavy fire for its handling of the crisis at the border, with Republicans blaming the administration for rolling back interior enforcement and Trump-era border security mechanisms. 

The Biden administration has instead pointed to ‘root causes’ in Central America like poverty, violence and climate change. It has also highlighted work it has done to combat smuggling, including a recent operation that resulted in over 5,500 arrests. The administration has claimed the border is ‘secure’ and ‘closed.’

‘People should not listen to the lies by smugglers who will take advantage of vulnerable migrants, putting lives at risk,’ DHS said in it statement Wednesday. ‘The border is closed, and we will continue to fully enforce our immigration laws at the border.’

Fox News’ Bill Melugin contributed to this report.

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