Judge orders Biden to stop using Trump border policy to expel families

A federal judge has ordered the Biden administration to stop swiftly expelling migrant families with children who cross the U.S.-Mexico border using a policy crafted under the Trump administration. 

The Biden administration has used the so-called Title 42 policy to swiftly return border crossers without giving them the chance to apply for asylum.

The decision comes in a class action suit from families arguing Title 42 wrongly blocks them from seeking humanitarian protections.

The decision from federal district court Judge Emmet Sullivan, a Clinton appointee, gives the Biden administration 14 days in order to begin processing families, writing that Title 42 “den[ies] the proposed class members the opportunity to seek humanitarian benefits pursuant to the immigration statutes,” adding that they have shown the “likelihood of suffering irreparable harm.”

The Biden administration has been allowing unaccompanied children and some families to enter the country following a decision from Sullivan last year requiring entry for children who arrive alone. 

Still, in August alone it used Title 42 to expel more than 16,000 “individuals in a family unit” among the 93,000 people removed under the policy last month.

Those who are expelled are often returned to Mexico or their country of origin. The administration on Wednesday resumed repatriation flights to Haiti, expelling 86 Haitians as the country faces political uncertainty and recovers from a devastating earthquake.

“President Biden should have ended this cruel and lawless policy long ago, and the court was correct to reject it today,” Omar Jadwat, director of the American Civil Liberties Union (ACLU) Immigrants’ Rights Project, said in a statement following the ruling.

The decision is the latest Title 42 loss for the Biden team after the ACLU reignited another suit it had agreed to pause in the early days of the new administration.

Biden administration officials have for months defended their use of Title 42, even as the administration has suggested it may lift the policy in phases.

“ICE is concerned that the loss of Title 42 could create additional pressure on our immigration system,” U.S. Immigration and Customs Enforcement (ICE) acting Director Tae Johnson told lawmakers in May, nodding to the ACLU’s suit. He called the rule “critical” to maintaining social distance in border facilities.