People For the American Way

Trump Judge Forces Biden Administration to Continue Restrictive Trump Asylum Policy

News and Analysis
Trump Judge Forces Biden Administration to Continue Restrictive Trump Asylum Policy
Phoenix, Ariz. - February 8, 2018: Supporters of Guadalupe García de Rayos and her family wait for updates during a rally attempting to prevent her deportation.

As threatened earlier, Trump District judge Robert Summerhays ordered the Biden Administration to continue an extremely restrictive Trump asylum policy. That policy (referred to as Title 42) requires immediate expulsion of immigrants, including those seeking asylum. The May 2022 preliminary injunction stopped the Biden Administration from repealing the policy nationwide in Louisiana v CDC.

How did the Biden Administration seek to change the restrictive Title 42 policy?

 Allegedly based on public health concerns, the Trump Administration issued the “Title 42” order in 2020. It requires agents to immediately turn away immigrants at the border, without even giving them the chance to seek asylum or appear before an immigration judge. Critics have explained that the “unlawful, xenophobic policy” threatened “children, family and adults fleeing danger.” The policy has resulted in the expulsion of more than 1.6 million immigrants and asylum-seekers.

The Biden Administration promptly began to re-evaluate the Title 42 rule, including its alleged public health rationale. In early April, the Administration announced that it would rescind the Title 42 order by the end of May.  Instead, the Centers for Disease Control (CDC) would provide COVID-19 vaccinations to people at the border and take other, genuine public health measures. The CDC specifically determined that if there ever was any health justification for the policy, current conditions and alternatives clearly make it “no longer necessary.”  A late April plan provided more details, including use of other expedited removal procedures where appropriate.

What did Republican states and Trump judge Summerhays do?

 Louisiana and 23 other Republican states challenged the Administration plan in a federal lawsuit heard by Louisiana Trump judge Summerhays. As reported earlier in this blog, he initially did not forbid the plan itself, but issued a temporary order that stopped important steps to implement it.

On May 20, however, Summerhays issued a preliminary injunction that halted the CDC plan to rescind the Title 42 policy. Instead, he required that nationwide, even in states that did not join the suit, the government must continue to implement the restrictive Trump policy.

Experts and critics reacted quickly. Congressional Hispanic Caucus chair Raul Ruiz called it “outrageous, ridiculous, and erodes our asylum system.” The Administration explained that the CDC, not individual district courts, should make the “public health judgment” about whether to continue or end the policy. Immigration expert Lee Gelernt explained that the ruling is “wrong” and “inconsistent with the considered judgment of the CDC.”


What happens now?

 The Justice Department has already appealed Trump judge Summervale’s decision. Unfortunately, the Trump policy will remain in effect as the conservative Fifth Circuit considers the appeal.

 Another court decision should provide some help for some immigrants.  In March, 2022, the Court of Appeals for the DC Circuit limited the Title 42 policy. It ruled that the government could not use it to expel immigrants to countries where “they will likely be tortured” or threatened because of “race, religion, nationality,” political opinion, or membership in a particular social group. It sent the case back to a lower court for implementation.

Overall, however, the case provides yet another example of a lifetime Trump judge ordering the continuation of restrictive and harmful Trump policies. As in previous cases, Trump judge Summerhays has blocked Biden Administration efforts to help fix our immigration policies.



asylum, Immigration, judges, Trump judges