‘Arbitrary and Capricious’: Federal Judge Halts U.S. From Using Title 42 to Expel Migrants

‘Arbitrary and Capricious’: Federal Judge Halts U.S. From Using Title 42 to Expel Migrants

Judge Emmet Sullivan of the U.S. District Court in Washington, DC, ruled the American government cannot use Title 42 to expel migrants based on public health.

Sullivan agreed with the Plaintiffs that Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.”

The plaintiffs are “a group of asylum-seeking families,” and the defendant is DHS Secretary Alejandro Mayorkas.

The legal context of arbitrary and capricious: “arbitrary and capricious conduct is willful and unreasonable action without consideration or regard for the facts and circumstances.”

Title 42 originated in March 2020 at the start of the COVID pandemic, giving officials permission to quickly kick out migrants because of public health.

The Plaintiffs argued “that the Title 42 Process is arbitrary and capricious because the CDC (1) failed to impose the ‘least restrictive means necessary to prevent the spread of disease’ when implementing the policy and (2) failed to explain its departure from this ‘settled practice.'”

The standard came from the 2017 Final Rule, which “amended CDC regulations ‘governing its domestic (interstate) and foreign quarantine regulations'” after the Ebola and Middle east Respiratory System outbreak.

The Defendants claimed Title 42 uses the “least restrictive means.”

Sullivan disagreed, but the last explanation stood out to me:

Further, whether the specific goals of the 2017 Final Rule does not preclude a finding that the agency’s practice was to apply the “least restrictive means” test more broadly. After all, the 2017 Final Rule did not state that it was applying the “least restrictive means” test for the first time; instead, the CDC explained that the intent behind the rule was “to clarify the agency’s standard operating procedures and policies.” 82 Fed. Reg. at 6931. For example, in noting that the agency had “received several comments requesting the ‘least restrictive’ means with respect to quarantine and isolation,” the CDC not only clarified that it used the “least restrictive means” with respect to those two specific contexts, but also “agree[d] and clarifie[d]” that the agency sought to use that standard “in all situations involving quarantine, isolation, or other public measures.” 82 Fed. Reg. at 6912 (emphasis added). Defendants’ contention that the “least restrictive” standard applies only to U.S. citizens similarly fails because the CDC has clarified that it “appl[ies] communicable disease control and prevention measures uniformly to all individuals in the United States, regardless of citizenship, religion, race, or country of residency.” 89 Fed. Reg. at 6894 (emphasis added).

Plaintiffs also argued Title 42 was “arbitrary and capricious because the CDC failed to consider the harms to migrants subject to expulsion” and did not consider any alternatives.

Sullivan pointed out that “at the time of the August 2021 order,” COVID was already spread through America:

The relevant regulation defines “serious danger of the introduction of [a] quarantinable communicable disease into the United States” as “the probable introduction of one or more persons capable of transmitting the quarantinable communicable disease into the United States, even if persons or property in the United States are already infected or contaminated with the quarantinable communicable disease.”

—

However, despite the above, Defendants have not shown that the risk of migrants spreading COVID-19 is “a real problem.”

—

As Plaintiffs point out, record evidence indicates that “during the first seven months of the Title 42 policy, CBP encountered on average just one migrant per day who tested
positive for COVID-19.” Pls.’ Mot., ECF No. 144-1 at 22 (citing Sealed AR, ECF No. 155-1 at 23). In addition, at the time of the August 2021 Order, the rate of daily COVID-19 cases in the United States was almost double the incidence rate in Mexico and substantially higher than the incidence rate in Canada.

The Department of Justice requested a five-week stay “to allow the Department of Homeland Security (“DHS”) time to prepare to transition to immigration processing under Title 8 of the U.S. Code.”

The Plaintiffs did not oppose the DOJ’s motion.

DHS said:

“The United States will continue to fully enforce our immigration laws at our border. In response to the court’s order, the Department of Justice is filing an unopposed stay motion. 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. But to be clear, under the unopposed motion, Title 42 would remain in place for some period. During the period of this freeze, we will prepare for an orderly transition to new policies at the border.

“We know that smugglers will lie to try to take advantage of vulnerable migrants, putting lives at risk.

“We continue to work with countries throughout the Western Hemisphere to take enforcement actions against the smuggling networks that entice migrants to take the dangerous and often deadly journey to our land borders and to address the root causes of irregular migration that are challenging our hemisphere as a whole.”

The government has ousted over two million migrants since Title 42’s March 2020 inception.

The Border Patrol expects a surge of migrants due to the ruling.

Already hearing from multiple Border Patrol sources that they will be expecting a significant surge/rush of migrants at the border once word gets around about this order, on top of numbers that are already at all times highs even with Title 42 in place.

— Bill Melugin (@BillFOXLA) November 15, 2022

Donations tax deductible
to the full extent allowed by law.