US News

Appeals court keeps Title 42 in place as DHS preps for up to 400,000 migrant surge

A federal appeals court in Washington ruled Thursday that the Biden administration can continue to use a Trump-era public health authority to rapidly deport migrant families apprehended at the US-Mexico border.

The ruling puts a hold on a judge’s order that the White House no longer use the COVID-19 pandemic to justify quick expulsions of families under the public health authority, known as Title 42.

US District Judge Emmet Sullivan wrote in his Sept. 16 ruling that “in view of the wide availability of testing, vaccines, and other minimization measures, the Court is not convinced that the transmission of COVID-19 during border processing cannot be significantly mitigated.”

The appeals court’s decision came hours after NBC News reported that Homeland Security Secretary Alejandro Mayorkas had asked top Department of Homeland Security (DHS) officials whether they were prepared for up to 400,000 people to try to enter the US in October if Sullivan’s order was upheld.

That number would nearly double the 213,534 migrants Customs and Border Protection (CBP) apprehended at the frontier in July, as well as the 208,887 encountered in August.

Those two months marked the first time that more than 200,000 illegal immigrants attempted to cross into the US from Mexico in consecutive months since February and March of 2000.

Secretary of Homeland Security Alejandro Mayorkas speaks during a
Secretary of Homeland Security Alejandro Mayorkas reportedly is getting ready for around 400,000 migrants to attempt to cross into the US in October. Patrick Semansky/AP

The NBC report, which cited two DHS officials, added that Mayorkas’ query was not based on intelligence or data, but merely represented a “worst-case scenario.”

US District Judge Emmet Sullivan ruled Sept. 16 that the White House could no longer use the COVID-19 pandemic to justify quick deportations of families under the public health order, known as Title 42.

Sullivan wrote in his ruling that “in view of the wide availability of testing, vaccines, and other minimization measures, the Court is not convinced that the transmission of COVID-19 during border processing cannot be significantly mitigated.”

The Biden administration has appealed the ruling, which is set to go into effect at some point Thursday.

Migrants, many from Haiti, wait in lines to board buses under the Del Rio International Bridge.
Customs and Border Protection apprehended over 200,000 migrants in both August and July. Julio Cortez/AP

The report emerged one day after Panama’s foreign minister warned in an interview that up to 60,000 migrants — many of Haitian origin — are passing through the Central American country bound for the US. The report also follow the humanitarian crisis at Del Rio, Texas, where thousands of migrants gathered under a bridge after wading across the Rio Grande.

DHS did not immediately respond to requests for comment.