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Federal judge blocks for now Biden administration from lifting Title 42

Since taking office, President Joe Biden’s administration has continued to rely on Title 42, a public health authority invoked at the onset of the coronavirus pandemic that allows border officials to turn migrants away at the US-Mexico border.

In early April, though, the US Centers for Disease Control and Prevention announced plans to terminate the order. The CDC said at the time it’s no longer necessary given current public health conditions and the increased availability of vaccines and treatments for Covid-19. The decision sparked a flurry of criticism by Republicans and Democrats amid heightened concerns over a migrant surge when the authority lifts.

But just days away from Title 42 ending this month, Judge Robert Summerhays of the Louisiana Western District Court found that the Biden administration didn’t follow the right procedures in ending the authority and argued that while the administration may invoke an action under emergency conditions, those may not apply with respect to terminating it.

“Simply put, the CDC has not explained how the present circumstances prevented the CDC from issuing the Termination Order through the required notice and comment process under the APA,” Summerhays wrote, referring to the Administrative Procedure Act.

The termination of Title 42, the judge concluded, is not exempt from the notice and comment process, which can potentially take months. The public health authority, which has been fiercely criticized by immigrant advocates, will remain in effect for now.

Lee Gelernt, ACLU attorney leading lawsuits against Title 42 in Washington, DC, called the ruling “wrong.”

“The ruling is wrong, inconsistent with the considered judgment of the CDC, and should be immediately appealed by the administration. The lawsuit is the height of hypocrisy; the States that brought it seem only to want COVID restrictions when it comes to asylum seekers,” he said in a statement.

“Notwithstanding this injunction, a parallel injunction in DC prohibits the use of Title 42 to expel families who would face persecution or torture,” Gelernt added.

CNN reached out to Justice Department for comment.

The ruling stems from a lawsuit filed by Arizona, Louisiana and Missouri in April against the Biden administration’s decision to end Title 42. More than a dozen states, mostly GOP-led, later joined the suit.

Last week, Summerhays heard arguments in the case in a more than two-hour hearing, largely focusing his questions on the harm to the states and whether the administration followed proper procedures, noting that emergency conditions have changed, potentially allowing for outside input. Summerhays had previously temporarily blocked the administration from winding down the public health order before the termination date.

This story has been updated with additional details Friday.

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