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Judge Will Issue Restraining Order Halting Initial Steps To End Title 42

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A federal Judge in the Western District of Louisiana has indicated he will grant an Temporary Restraining Order halting the Biden administration’s intial steps to end Title 42.

Contrary to the media and social media headlines, this is not an injunction preventing the Biden administration from ending Title 42. A decision on that issue is on track to be determined by the Court prior to the announced May 23 end date. This TRO came about because Arizona and other states filed a Motion for TRO asserting that the government already was failing to apply Title 42, so a TRO was needed to preserve the status quo while the Court considered a previously filed Motion for a Preliminary Injunction.

From the TRO motion (emphasis added):

This is a suit challenging Defendants’ revocation of Title 42 (“Termination Order”), which Defendant CDC publicly stated was being delayed until May 23 “to enable DHS to … prepare for full resumption of regular migration under Title 8 authorities.” Termination Order (Dkt 1-1) at 5. Plaintiff States have sought a preliminary injunction to prevent that Termination Order from going into effect, and have agreed with Federal Defendants on a briefing schedule that would permit adjudication of that motion before May 23.

It appears, however, that the Defendant Department of Homeland Security (“DHS”) and its Defendant subagencies are partially implementing the Termination Order already. Yesterday, a major media outlet reported that “Border Patrol is not using the Title 42 public health order to remove many migrants from the Northern Triangle countries of Guatemala, Honduras and El Salvador, more than a month before the Biden administration lifts the order altogether,” according to “multiple Border Patrol sources.”1 DHS seems to admit it partially ended Title 42, on the basis that return flights to “certain non-contiguous countries” take too long to schedule.2 But DHS previously returned aliens to Mexico when flights were limited, and such action is the only one that aligns with public health harms detailed in the Title 42 Order, which is still in place. Thus, while Title 42 may be “technically still in place,” the reality on the ground is that DHS “has largely stopped using Title 42 to remove migrants from Northern Triangle countries, and is instead processing them via Title 8 and expedited removal.”3

Minutes from a conference with the Judge indicate the Judge will grant the TRO, though no order has been signed as of this writing:

The Court held a status conference via Zoom on April 25, 2022. Participating in the conference were Joseph St. John, Drew Ensign and John Sauer for the Plaintiffs; and Jean Lin, Erez Reuveni, John Robinson and Jonathan Kossak for Defendants.

The Court discussed the Motion for Temporary Restraining Order [ECF No. 24] filed by Plaintiffs. For the reasons stated on the record, the Court announced its intent to grant the motion. The parties will confer regarding the specific terms to be contained in the Temporary Restraining Order and attempt to reach agreement.

So all the screaming headlines notwithstanding, this is a very limited development.

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