Legal battle continues over use of Title 42 along the border

HOUSTON – A controversial law used along our borders in response to rising apprehensions is set to expire in less than month’s time. However, the battle to continue using Title 42 is not over.

Fifteen states, including Texas, are now asking a federal court judge to keep Title 42 in place.

Title 42 is a health-related law that was enacted under former President Donald Trump’s administration as way to quickly expel migrants caught crossing into the country illegally. Immigration advocates argue there is no longer a legal basis to keep Title 42 in place since the COVID-19 pandemic has slowed. The Centers for Disease Control and Prevention, which has the authority to use Title 42 as a way to prevent the spread of communicable disease, rescinded its order in April.

“The pandemic has slowed down considerably so we don’t see the need for this particular measure to be put in place,” said Cesar Espinosa, executive director of FIEL.

A federal court judge in Louisiana then prevented Title 42 from expiring after several conservative states warned it would lead to an even greater surge in numbers along the border. According to Customs and Border Protection, there were more than 2.3 million encounters along our southern border in fiscal year 2022; a record number. Title 42 was used more than 1 million times to send migrants back to Mexico under the auspices of the pandemic, according to CBP data.

“The courts will sometimes leave in place a policy that is doubtful to avoid sweeping changes to policy,” said Texas Southern University Constitutional law professor, Josh Blackman.

A lawsuit filed by the American Civil Liberties Union in January 2021 on behalf of asylum seekers, argues Title 42 prevents immigrants from legally seeking asylum. A federal court judge in Washington, D.C., presiding over this lawsuit recently ordered the government to stop using Title 42.

Since these rulings are in conflict, Blackman anticipates the matter will wind up before the U.S. Supreme Court.

“Once that authority goes out the window, and that appears to be imminent, the situation is going to get much, much worse,” Senator John Cornyn/(R) Texas said last week following the most recent court ruling.

Cornyn argues the end of Title 42 will encourage more illegal immigration because our government won’t have the resources to house and process all those who would have to be deported to countries other than Mexico; meaning they will be released into the US while their cases work through immigration court.

“What surprises me is the government really continues kicking the can of immigration reform and nobody does anything; something has to be done,” said Houston immigration attorney, Raed Gonzalez.

Gonzalez worries any increase along the border will impact the already 1.9 million cases backlogged in immigration court, according the Transactional Records Access Clearinghouse at Syracuse University. Gonzalez and Espinosa said the situation along with is not likely to change with an overhaul of our immigration laws.

“No real immigration overhaul has been done under the Biden administration as was promised when he was running for president,” said Espinosa.

The federal government did have a plan to send a surge of resources to the border when Title 42 was set to expire last May before being blocked by the judge in Louisiana. That plan is still in place and unless another court ruling causes a delay, Title 42 is set to expire on Dec. 21.


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Award winning investigative journalist who joined KPRC 2 in July 2000. Husband and father of the Master of Disaster and Chaos Gremlin. “I don’t drink coffee to wake up, I wake up to drink coffee.”