This week marks the end of a coronavirus-related restriction on claiming asylum that has allowed the US to quickly expel migrants at US-Mexico border since 2020.
The rule is known as Title 42, part of an arcane public health law that allows curbs on migration aimed at protecting Americans from disease.
The federal government and US states and cities on the border are trying to prepare for a fresh increase of people coming to the border and seeking permission to stay in the US. Joe Biden has warned the situation will be “chaotic for a while”.
At the time, then-President Donald Trump argued Title 42 was necessary to curb the spread of COVID-19, but rights groups immediately criticised the measure, saying the pandemic was merely a pretext to crack down on immigration.
The policy’s expiration coincided with the end of the federal COVID-19 public health emergency on May 11, and the Biden administration has sent additional troops and resources to the US-Mexico border in advance of its end.
Washington also finalised a new rule this week that will make most refugees and asylum seekers arriving at the country’s southern border with Mexico ineligible to seek asylum in the US. The rule will take effect when Title 42 expires.
People seeking to immigrate have rushed across the border in the days and hours before the policy was set to end, fearing that the new policy would make it far more difficult to gain entry into the US.
In the Mexican border town of Matamoros, across from Brownsville, Texas, people arrived steadily on Wednesday, stripping down before descending a steep bank clutching plastic bags filled with clothes. They slowly waded into the river, one man holding a baby in an open suitcase on his head.
On the US side, they put on dry clothing and picked their way through concertina wire. Many surrendered to authorities, hoping to be released to stay legally while pursuing their cases in backlogged immigration courts, a process which can take years.
Why is it expiring?
The rule’s end comes more than a year after the Biden administration first moved to rescind the order. Just days before Title 42 was set to expire last May, a federal judge ruled that the administration could not roll back the policy while a challenge from a group of GOP-led states proceeded.
However, a separate federal judge ruled in November that Title 42 violated the Administrative Procedures Act and ordered that the administration wind down its use of the policy by late December.
Title 8 is back in effect
Title 42 allowed border authorities to swiftly turn away migrants encountered at the US-Mexico border, often depriving migrants of the chance to claim asylum and dramatically cutting down on border processing time. But Title 42 also carried almost no legal consequences for migrants crossing, meaning if they were pushed back, they could try to cross again multiple times.
Now that Title 42 has lifted, the US government is returning to a decades-old section of US code known as Title 8, which Homeland Security Secretary Alejandro Mayorkas has warned would carry “more severe” consequences for migrants found to be entering the country without a legal basis.
The Department of Homeland Security has repeatedly stressed in recent months that migrants apprehended under Title 8 authority may face a swift deportation process, known as “expedited removal” – and a ban on reentry for at least five years. Those who make subsequent attempts to enter the US could face criminal prosecution, DHS has said.
But the processing time for Title 8 can be lengthy, posing a steep challenge for authorities facing a high number of border arrests. By comparison, the processing time under Title 42 hovered around 30 minutes because migrants could be quickly expelled, whereas under Title 8, the process can take over an hour.
Title 8 allows for migrants to seek asylum, which can be a lengthy and drawn out process that begins with what’s called a credible-fear screening by asylum officers before migrants’ cases progress through the immigration court system.
Title 8 has continued to be used alongside Title 42 since the latter’s introduction during the Covid-19 pandemic, with more than 1.15 million people apprehended at the southern border under Title 8 in fiscal year 2022, according to US Customs and Border Protection. More than 1.08 million people were expelled under Title 42 at the southern land border during that same period.
There’s also a new border policy
The administration is also rolling out new, strict policy measures following the lifting of Title 42 that will go into effect this week.
That includes putting into place a new asylum rule that will largely bar migrants who passed through another country from seeking asylum in the US. The rule, proposed earlier this year, will presume migrants are ineligible for asylum in the US if they didn’t first seek refuge in a country they transited through, like Mexico, on the way to the border. Migrants who secure an appointment through the CBP One app will be exempt, according to officials.
If migrants are found ineligible for asylum, they could be removed through the speedy deportation process, known as “expedited removal,” that would bar them from the US for five years.
But the longstanding protocols also carry stiffer penalties for migrants who are caught crossing the border illegally, including the possibility of a five-year ban on entry to the U.S. for migrants who are deported, as well as prosecution.
On Wednesday, the Biden administration finalized a new rule that severely limits asylum for those who arrive at the U.S.-Mexico border without first applying online or seeking protection in a country they passed through. (The rule was first announced in February and is likely to face legal challenges.)
That new rule is part of the Department of Homeland Security’s efforts to assuage fears that mayhem may break out at the country’s ports of entry as Title 42 sunsets. It also concedes that the recent spike in new arrivals is already putting a strain on U.S. immigration resources.
“Our plan will deliver results. But it will take time to be fully realized,” Homeland Security Secretary Alejandro Mayorkas said on Wednesday.
New York City social service advocates say they’re running out of space to house the migrants, whose impact is being felt in all kinds of ways. For example, Win, an organization that helps provide family shelter and housing in the city, has had such a rapid increase of the number of people in its shelters — including 700 children alone — that it has had to buy five more refrigerators since the fall. Christine Quinn, WIN’s president and CEO, said there’s no excuse for the flat-footed nature of the response now, given that the deadline Thursday night had been looming.
“We really should have had comprehensive, all-hands-on-deck plans developed and implemented — and that is really lacking,” Quinn said.
The White House argues that Republicans have tried to use immigration in political attacks in every recent election without much success.
“President Biden is standing up for mainstream values by delivering the most border security resources of all-time and treating migrants with dignity rather than tearing families apart,” White House spokesperson Andrew Bates said in an email. “Meanwhile congressional Republicans passed an extreme budget to fire thousands of Border Patrol agents and hamstring our ability to block fentanyl from entering the country.
“Congressional Republicans’ actions discredit their flailing rhetoric; the cynical message strategy they’re bragging about has done nothing but crash into reality for the last three consecutive election cycles,” Bates added.
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