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Action Needed After Federal Court Deals Death-Blow to Asylum Rights

A district court order forcing the government to retain Title 42 must not be the last word.
US Border Patrol agent detains a migrant at the southern border

May 24, 2022

The right to seek asylum in the United States suffered another major setback Friday after a federal judge in Louisiana ruled that the Biden administration must continue to implement Title 42 restrictions at the U.S. border. This means that refugees who arrive at U.S. borders will continue to be expelled to Mexico or their countries of origin, without a chance to request asylum, even if they express fear for their safety. 

Friday’s court order is the latest in a series of politically-motivated rulings designed to halt Biden administration policies and return asylum-seekers to harm. Absurdly, the federal judge in the case, Robert Summerhays—who was appointed by the previous administration—found that the executive branch must go through a notice-and-comment process before ending Title 42, even though the policy was created without any such public consultation. 

The notion that the executive branch can end asylum without any advance notice to the public, but that it cannot later restore it by the same means, reflects a blatant double standard. It also underlines the small value that large sections of the U.S. judiciary and political class attach to the legal rights and safety of people seeking asylum. 

The Biden administration promptly declared their intent to appeal the injunction. It is possible that a higher court may find in their favor and either halt or limit the scope of Judge Summerhays’s order. Furthermore, an earlier court ruling that restricts the scope of Title 42 is also scheduled to take effect imminently. This prior ruling—while it stops far short of fully restoring asylum—may help to lessen the harm of the policy in the months ahead. 

In either case, however, anti-asylum politicians in Congress are still working to prolong Title 42 by legislative means. Even after Judge Summerhays’s order went into effect, members of Congress from both major parties are still threatening to make Title 42 quasi-permanent by law. Specifically, they continue to state that they will refuse to consider further COVID-19 relief legislation without incorporating Title 42. 

Further pandemic aid is desperately needed to ensure a robust supply of tests, vaccine doses, and therapeutics in the event of another surge. By blocking this legislation, unless other politicians agree to indefinitely extend Title 42, politicians are effectively taking the U.S. public hostage—all to force through a cruel policy that—as the nation’s public health officials recently concluded—is not needed to mitigate the pandemic. 

We need to call on our members of Congress to make sure they oppose this unjust policy and the vicious legislative tactics some are using to try to force it to a vote. You can take action with UUSC to call your senator directly and ask them to protect asylum and oppose any bill or amendment that would extend Title 42. 

Meanwhile, the Biden administration should take all steps within their power to minimize the harm caused by this order. Specifically, they should interpret the earlier March 4 ruling from the D.C. court of appeals as broadly as possible, maximizing access to humanitarian protection while complying with both court decisions. 

With the announced termination of Title 42 originally slated for May 23, we had hoped that this week would see the long-overdue demise of a harmful policy that has resulted in the expulsion of thousands of people—including more than 20,000 Haitian refugees—to unspeakable danger. Instead, the policy remains in effect, due to the relentless hostility of some politicians to the rights of people seeking asylum. 

Our efforts to uphold the principle of asylum must be equally unrelenting. Take action today to urge Congress to protect this core human right.

Photo Credit: iStock—vichinterlang

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