Weeks after Title 42 was ordered to end in December 2022, the supposed “public health” policy is still effectively closing the border to many asylum seekers after an eleventh-hour order from the Supreme Court kept it alive. And as the Trump-era policy inches closer to its third anniversary, the Biden administration is expanding its use, despite its repeated acknowledgment that there is no longer any public health justification for using Title 42.

On January 5, a week after the Supreme Court halted a lower court ruling that would have vacated the policy, the White House announced that DHS would be applying the authority to expel migrants from three additional countries as part of newly created parole programs.

How did we get here?

Two dueling lawsuits – the first brought by asylum-seeking families challenging expulsions under Title 42 in D.C. and the second by Republican state attorneys general challenging the Biden administration’s plan to terminate the policy in May 2022 – have alternatively raised and dashed hopes that the border policy will soon end.

Last April, Judge Robert Summerhays in Louisiana granted the red states a preliminary injunction preventing DHS from lifting Title 42. His decision was based on a finding that the administration did not follow the required procedures in trying to end the policy.

In November, Judge Emmet Sullivan in D.C. granted summary judgment in favor of the families, holding that the Title 42 policy itself was illegal and requiring DHS to end its use by December 21, 2022.  The D.C. Circuit Court of Appeals then denied a request from a coalition of Republican-led states to intervene in the litigation, which has been pending for almost two years, noting the “inordinate and unexplained untimeliness” of the states’ motion.

That decision led the group of attorneys’ general to petition the Supreme Court to rule on whether they should be allowed to intervene in the appeal. On December 27 the Supreme Court issued an order blocking Judge Sullivan’s decision that would have ended the Title 42 policy until the Court can rule on the red states’ motion to intervene.

The high court’s decision has been panned by immigration advocates for causing vulnerable asylum seekers stranded in Mexico further harm and by legal experts as procedurally bizarre.

What’s next for Title 42?

For now, the future of Title 42 is in the hands of the Supreme Court. Oral arguments are scheduled for March 1, 2023 on the narrow question of whether the states should be allowed to participate in the appeal at the D.C. Circuit. Although the Court has granted expedited review, Title 42 will at minimum remain in place for the next few months.

If the Court rules in favor of the states, the states will almost certainly ask to halt the district court’s order vacating Title 42 once again. In that case, the policy will likely continue to be used to turn away and expel asylum seekers for the foreseeable future.

If the Supreme Court find the states’ request to intervene inappropriate, the appeal will proceed without a stay and the Biden administration will likely continue to defend the legality of the Title 42 policy while ending its current use at the border.  A decision could come any time after oral arguments and before the end of June.

However, while the litigation continues, the Biden administration has taken advantage of the Supreme Court’s ruling to further expand the reach of Title 42. The recently announced humanitarian parole programs for citizens of Cuba, Haiti, and Nicaragua are conditioned on Mexico’s acceptance of up to 30,000 expulsions per month of people from those countries and Venezuela under Title 42.

Previously, Mexico had only agreed to accept expulsions of citizens of Mexico, Guatemala, El Salvador, and Honduras, with Venezuela added in October 2022 with the announcement of the special parole program for Venezuelans. Increasing CBP’s ability to summarily expel and reject more asylum seekers is at odds with the administration’s often-repeated position that there is no longer any legitimate justification for the pandemic-era Title 42 policy.

Looking forward

Title 42 will eventually have to end, as observers across the political spectrum recognize. The sooner the better, as the policy has served only to cause asylum seekers immense and irreparable harm while violating the United States’ legal and moral obligations to vulnerable migrants. It has not been successful in preventing the spread of COVID in the U.S. nor in reducing irregular border crossings.

Unfortunately, the Biden administration seems to be looking backward instead of forward in its search for solutions. The January 5 announcement included a new proposed transit ban that would bar asylum for anyone who has not previously applied for asylum in a third country before reaching the U.S., as well as those who fail to utilize a new process at a port of entry. Similar transit bans proposed by the Trump administration were found illegal by the Ninth Circuit and D.C. District Court.

Asylum seekers and Americans deserve better than a reprise of discredited, unlawful, and unjust policies at the border.