This looks like a change in attitude, but it isn’t. The Biden administration announced Wednesday evening that it will appeal a federal judge’s ruling that that would lift asylum restrictions. What they are referencing is Title 42 and the ruling that ended its use on the southern border. The dirty little secret is that while the Biden administration publicly criticizes strict asylum measures along the border, the truth is that it kept Title 42 in place, for the most part.

Title 42 is on track to end on December 21, just two weeks after the announcement of the appeal was made. There is no indication this appeal will stop the December 21 deadline from going into effect. In November U.S. District Judge Emmet Sullivan ordered the Biden administration to lift the asylum restrictions. At the time of his ruling, Sullivan called expulsions under Title 42 “arbitrary and capricious.” DHS said it would file an appeal with the U.S. Court of Appeals for the District of Columbia

Title 42 was put in place in March 2020 during the previous administration, on the recommendation of the CDC, as a way to mitigate the spread of the coronavirus pandemic. The CDC recommendation of Title 42 came from a 1944 public health law. It has only been used one other time. Since it went into effect, it has been used more than 2.4 million times. Activists argue that Title 42 harms people fleeing persecution. They also accused the previous administration of using the pandemic to stop immigration.

And immigrant rights’ groups have argued that the use of Title 42 unjustly harms people fleeing persecution and that the pandemic was a pretext used by the Trump administration to curb immigration.

“The Biden administration’s decision to appeal is unsurprising given its vigorous defense of the policy for the past two years,” said Lee Gelernt, an attorney for the ACLU and lead counsel on its Title 42 litigation, in an email.

The ban has been unevenly enforced by nationality, falling largely on migrants from Guatemala, Honduras, El Salvador — as well as Mexicans — because Mexico allows them to be returned from the United States. Last month, Mexico began accepting Venezuelans who are expelled from the United States under Title 42, causing a sharp drop in Venezuelans seeking asylum at the U.S. border.

The story gets confusing. The administration says it does not want to keep Title 42 in place, it is just appealing the ruling because the court “erred in vacating those agency actions.” Their point being that CDC’s Title 42 orders were lawful.

“The CDC made a science-based determination that Title 42 is no longer necessary,” the official said.

The DOJ plans to ask an appeals court to rule that the “CDC was within its legal authority make such a determination – independent of any political influence,” the official added.

So, Team Biden wants it both ways. They want to talk as though they want Title 42 to end but they want to make sure to provide cover for CDC in that the original implementation was lawful and appropriate. The fact is that when Title 42 ends, the stream of illegal migrants crossing the border is predicted to explode. DHS knows that and is flailing about in the lead-up to the December 21 deadline.

This confusing appeal is happening at the same time the administration finds itself under fire for the current Biden border crisis. This year fourteen Border Patrol agents have committed suicide, sadly, an historic high with that statistic.

A Border Patrol agent has died from injuries sustained while on a chase for migrants fleeing to avoid apprehension in Mission, Texas. He leaves behind two young children.

Rep. Mayra Flores, who is married to a Border Patrol agent, tweeted his name and her condolences.

Perhaps Joe Biden would like to explain to the Border Patrol agent’s family why there are other things more important for him to do than to tour the southern border to see with his own eyes what is going on.

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