Federal Court Rejects States’ Attempt to Delay End of Title 42

On Friday evening the D.C. Circuit Court of Appeals denied a motion filed by a group of states led by Texas to intervene in Huisha-Huisha v. Mayorkas, a class action lawsuit challenging the Title 42 expulsion policy. The asylum seeker plaintiffs in the case are represented by the American Civil Liberties Union, Center for Gender & Refugee Studies (CGRS), Oxfam America, RAICES, and Texas Civil Rights Project.

In November the U.S. District Court for the District of Columbia sided with the plaintiffs and struck down the Title 42 policy on the basis that it was arbitrary and capricious. The Biden administration subsequently appealed that decision. In the meantime, the district court’s injunction is slated to take effect on Wednesday, December 21, at which point Title 42 expulsions will cease and people seeking asylum will finally have the opportunity to present themselves at the southern border and pursue their claims, as is their right under U.S. law.

In an eleventh-hour attempt to perpetuate the Title 42 policy, the states sought to intervene in the case and secure a stay pending the federal government’s appeal. Though the Huisha-Huisha case has been pending for nearly two years, the states did not intervene until after the district court had ruled Title 42 illegal. Now rebuffed by both the district and circuit courts, the states are eyeing an appeal to the U.S. Supreme Court.

Melissa Crow, Director of Litigation at CGRS and co-counsel in the Huisha-Huisha case, offered the following comment in response to today’s decision:

“For nearly three years, the Title 42 expulsion policy has illegally blocked people fleeing persecution from exercising their legal right to seek asylum, with devastating consequences. Refugees have been returned to the countries they fled or left stranded in some of the most dangerous regions in Mexico, where they have fallen prey to brutal violence. Human rights investigators have documented over 13,000 violent attacks against asylum seekers expelled to Mexico under the Biden administration, a sobering figure that represents just the tip of the iceberg.”

“Every day that Title 42 remains in place, vulnerable families and adults are put at risk. That a group of state politicians would fight tooth and nail to preserve such a dangerous policy, in defiance of U.S. laws and treaty obligations, is shameful. The Biden administration must do everything in its power to ensure that Title 42 ends as planned next week. It is long past time to turn the page on Title 42 and re-establish a fair and humane asylum process at the southern border.”