Judge blocks US from using Title 42 to expel migrants

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Border Patrol chief says memo clearing migrant release into US after Title 42 end is unprecedented

Raul Ortiz made the comments under oath during a recorded deposition first obtained by Fox News Digital.

A federal judge issued an order on Tuesday barring federal authorities from using Title 42, a Trump-era rule that allowed the U.S. to quickly expel migrants who crossed the border. 

U.S. District Judge Emmet Sullivan said the policy is "arbitrary and capricious" and violates the Administrative Procedure Act in his ruling on Tuesday.

Title 42 was originally enacted at the outset of the coronavirus pandemic in March 2020, allowing for authorities to quickly expel migrants on public health grounds. 

A federal judge issued an order on Nov. 15, 2022, barring federal authorities from using Title 42 to quickly expel migrants who crossed the border. (John Moore/Getty Images/File)

The Trump administration used the authority to expel more than 185,000 migrants in fiscal year 2020, while the Biden administration expelled 937,000 migrants in 2021 and 983,000 migrants in 2022 using Title 42, according to Customs and Border Protection data. 

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The Centers for Disease Control and Prevention announced in April that the order would expire at the end of May, but a federal judge in Louisiana temporarily blocked the Biden administration from ending it in response to a lawsuit by two dozen Republican-led states. 

The Biden administration filed an unopposed stay motion, asking the judge to let the order take effect in five weeks. 

"The delay in implementation of the court’s order will allow the government to prepare for an orderly transition to new policies at the border," the Department of Homeland Security said in a statement. 

Brazilian migrants make their way around a gap in the U.S.-Mexico border in Yuma, Arizona, to seek asylum in the U.S. after crossing over from Mexico. (AP Photo/Eugene Garcia, File)

It comes as record numbers of migrants stream across the southern border, with nearly 2.4 million encounters in fiscal year 2022, which ended in September.

Republicans have argued that ending Title 42 could exacerbate an already unmanageable border crisis. 

"This will further signal to cartels, human smugglers, & illegal immigrants that the border is wide open—inciting more violence & lawlessness," Texas Gov. Greg Abbott tweeted on Tuesday. 

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The ruling comes as the Biden administration tries to tamp down on border crossings, announcing a new initiative last month to use Title 42 to expel Venezuelan nationals back to Mexico.

A migrant family sits after being processed on May 5, 2022, in Roma, Texas. (Getty Images)

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Former U.S. Customs and Border Protection Commissioner Chris Magnus left his position on Sunday after being told to resign or be fired by Homeland Security Secretary Alejandro Mayorkas, according to a government source.