Advocates Restart Border Suit After Negotiations Hit Impasse (1)

  • Title 42 allows for speedy expulsion of migrants
  • Preliminary figures show 210,000 migrant encounters in July

(Adds court filing details in paragraphs 5, 6, and 11.)

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Immigrants’ rights advocates are pushing ahead with litigation against the Biden administration after negotiations over ending or narrowing a U.S.-Mexico border restriction “reached an impasse,” according to a court filing.

The American Civil Liberties Union and other groups had put a legal challenge on hold for months while pushing the administration to end Title 42, a public health authority invoked by the Centers for Disease Control and Prevention allowing for the immediate expulsion of many migrants attempting to enter the country during the Covid-19 pandemic.

Discussions to resolve or narrow the dispute came up short, highlighting how the Biden administration has struggled to find a balance between immigrants’ rights groups and those pushing for more border security.

Photographer: Mario Tama/Getty Images
A person stands in July 2021 in Tijuana, Mexico next to the U.S.-Mexico border barrier painted with a mural depicting people who arrived in the U.S. illegally as children and were deported as adults.

Groups will now resume litigation against the administration, advocacy and government lawyers said in a joint filing Monday in the U.S. District Court for the District of Columbia. The news comes as the delta variant of Covid-19 prompts renewed fears and health precautions nationwide.

Covid-19 exposure risks for DHS workers, border crossers, and local communities have increased “significantly” because of the variant, David Shahoulian, DHS’s assistant secretary for border and immigration policy, said in a separate court document later Monday. He added that positive Covid tests have increased among migrants in recent weeks, and the government lacks adequate facilities to allow for proper distancing.

“In light of these and other considerations, enjoining the application of the CDC Order to families would exacerbate overcrowding at DHS facilities and create significant public health risks,” Shahoulian told the court.

Health and Safety

Rep. Henry Cuellar (D-Texas) cited the pandemic last week when he joined forces with Sen. Lindsey Graham (R-S.C.) to urge President Joe Biden to create a new position focused on protecting the health and safety of U.S. communities along the border.

Bipartisan Duo Pushes White House to Create New Border Position

Immigrants’ rights advocates say the Biden administration’s continued use of Title 42 has more to do with managing border numbers than with protecting public health.

“The Biden administration knows full well that maintaining Title 42 won’t stop the spread of COVID or prevent people who are literally fleeing for their lives from seeking safety in the U.S.,” Oxfam America global policy lead Noah Gottschalk said in a statement.

Homeland Security Secretary Alejandro Mayorkas has stressed that the CDC is in charge of decision-making on Title 42, and will make its call based on public health concerns.

U.S. officials reported more than 188,000 encounters with migrants at the border in June—the highest in decades, though many were making repeat attempts. U.S. Customs and Border Protection’s preliminary numbers indicate 210,000 encounters in July, Shahoulian told the court.

The Biden administration last week announced it was resuming a fast-track deportation process for some migrant families who aren’t expelled under Title 42.

Biden Administration Speeds Removal for Some Migrant Families

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editors responsible for this story: Anna Yukhananov at; Sarah Babbage at

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