National Security

ACLU reignites Title 42 suit, pushing Biden on border policy


The American Civil Liberties Union (ACLU) is reviving a lawsuit challenging the government’s use of a public health authority to quickly expel people crossing the Southern border, preventing them from seeking asylum.

The suit was filed against the Trump administration, and the ACLU agreed to stall it when President Biden was sworn into office. 

But the ACLU is now moving forward again, signaling frustration with the new administration’s use of Title 42 to block asylum seekers due to COVID-19.

The filing with the U.S. District Court in D.C. said the months of negotiations between the government and a number of outside advocacy groups has “reached an impasse.”

“We gave the Biden administration more than enough time to fix any problems left behind by the Trump administration, but it has left us no choice but to return to court. Families’ lives are at stake,” ACLU attorney Lee Gelernt, the lead attorney on the case, said in a release.

The new litigation posture puts increased pressure on the Biden administration to draft a replacement policy.

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.

The government exempts children and some families from Title 42 but it is still widely used to expel single adults who seek to cross the border. In June, the Biden administration used Title 42 to expel more than 104,000 migrants at the southern border, more than 55 percent of the nearly 189,000 people who attempted to cross.

“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.

“I don’t think it’s a situation where it’s going to just be lifted electively. We would be mandated by some sort of court order to lift it,” he added later.

The White House referred The Hill to the Department of Justice, which did not immediately respond to a request for comment.

The White House late last month extended travel restrictions along the U.S.-Mexico border citing the pandemic, another move that would make it difficult to walk back Title 42.

The Department of Homeland Security on Friday also resumed “fast track” flights for “certain families who recently arrived at the southern border, cannot be expelled under Title 42, and do not have a legal basis to stay in the United States.”

Updated 6:46 p.m.

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