Immigration advocates had put their lawsuit on hold to give the Biden administration time to phase out the Trump-era Title 42 measure. But they say they're tired of waiting.



The Biden administration is heading back to court to defend itself in a case about the border. Activists say the White House is unjustly using a rule put in place at the start of the pandemic as an excuse to keep out asylum-seekers. This rule is called Title 42. The Trump White House initially used it to allow border agents to quickly remove tens of thousands of migrants and asylum-seekers at the U.S.-Mexico border. The American Civil Liberties Union and other groups say it's time for the government to stop using it. Here with more is NPR White House correspondent Franco Ordoñez

Hi, Franco.


SHAPIRO: You've been talking with the ACLU and others today. What do these groups say about this case?

ORDOÑEZ: Well, basically, they've lost patience. They first filed a suit against the Trump administration last year. They say they put the case on hold to give the Biden administration, though, time to make some changes at the border, where the asylum system has largely been shut down by the previous administration. But after seven months of talks with the new administration, they say they've hit an impasse. Here's how Lee Gelernt of the ACLU explained it to me.

LEE GELERNT: We believe this is our only option. The Biden administration asked for some time to fix what it said were problems created by the prior administration. We gave them more than sufficient time. Title 42 is still in place.

ORDOÑEZ: Now, I do want to be clear. Biden reversed several of Trump's harshest immigration policies. He stopped construction on the wall when he took office, but the new administration did keep using Title 42 to shut out most people seeking asylum. Advocates say this is effectively denying vulnerable people the right to an asylum hearing.

SHAPIRO: And how does the Biden administration defend its use of the policy? I mean, this is coming at a time of rising cases of the delta variant.

ORDOÑEZ: That's right. And White House press secretary Jen Psaki said today that it's up to the CDC.


JEN PSAKI: The president views it as a public health measure where the CDC is going to continue to provide guidance on how long it needs to be in place.

ORDOÑEZ: And in fact, the CDC issued a statement late this afternoon. They said there's a good reason to keep it because of the risks of spreading COVID in places like border stations and because of new variants. The CDC is very worried about the contagious delta variant, but the advocates say there's been improvements too. Here's Lee Gelernt again.

GELERNT: We do not believe that the delta variant is a basis for expelling people without a hearing. The country is in a much better position than when we filed the lawsuit, given the availability of vaccines and testing.

ORDOÑEZ: I'll just add the Justice Department and the Homeland Security Department didn't respond to requests about the lawsuit.

SHAPIRO: So they're claiming this is about epidemiology, national security. How much is actually about the politics of immigration?

ORDOÑEZ: Yeah. The Biden administration insists this is not about politics, that it is a needed public health measure. But the president is taking heat from both sides over it. Republicans say it's critical to keep it in place, and they've been using the surge in migration as a way to attack Biden. They can see that while Biden has high approval ratings for the way he's handled the pandemic, polls show concern about immigration. Biden has repeatedly defended himself against the criticism, saying that the vast number of migrants were being returned to their home countries. And that's largely because of Title 42. Out of more than 900,000 encounters border officials have had with migrants between January and June, 575,000 times it's been through the health measure Title 42.

SHAPIRO: NPR's Franco Ordoñez, thank you.

ORDOÑEZ: Thank you. Transcript provided by NPR, Copyright NPR.