What happens after Title 42?
By Elket Rodríguez
The Biden administration has begun preparing to end Title 42 –the COVID-19 order that authorizes the rapid expulsion of migrants, primarily to Mexico– on May 11. The administration will impose penalties for those who enter the U.S. without inspection, while at the same time opening new programs for migrants to come to the U.S. Unfortunately, the efforts the administration is taking largely exports our immigration dilemma to other countries, militarizes our border, and fails to fulfill our legal obligation to allow people to seek asylum in the United States.
With Title 42 gone, immigration officials will revert to Title 8 –the code of U.S. federal law dealing with immigration and nationality. There may be no more rapid expulsions, but there will be speedy deportations with more finality.
After Title 42 is lifted, the administration will rely heavily on expedited removal – a process where immigration officers quickly deport undocumented migrants. Individuals issued orders of expedited removal cannot re-enter the U.S. for a minimum period of five years from the date of expedited removal. Mexico already agreed to receive Cubans, Haitians, Nicaraguans, and Venezuelans deported by the U.S.
Migrants subject to expedited removal will undergo credible fear interviews with asylum officers. Generally, these interviews are conducted by phone while asylum seekers are in detention. The interviews serve as initial screening to determine if the migrant may ultimately qualify for asylum due to fear of persecution in their home country. The new expedited migrant processing rule permits asylum officers to interview migrants while in Customs & Border Protection (CBP) temporary holding facilities. Such facilities do not have the infrastructure or knowledge necessary to ensure attorney-client privileges, confidentiality, or allow for a proper preparation for the interview. These constraints potentially violate the due process of migrants.
The Department of Homeland Security may place some asylum seekers in a new Asylum Officer Adjudication Program. This program places migrants in an expedited adjudication process that seeks to limit access to immigration courts already backlogged with over two million cases.
Essentially, a legal "border wall” will be raised when the administration announces the implementation of the Asylum Ban. This rule would create a rebuttable presumption of asylum ineligibility for those asylum seekers who enter the United States without a previously scheduled appointment through CBP One and did not apply for and were denied protection in a country they traveled through (third country) on their way to the United States. There are many reasons asylum seekers might bypass the third country requirement or an appointment with the app, including the limited availability of appointments (about 1,000 per day for the entire border), the glitches with the app itself, access to internet or data service, and whether or not they have an up-to-date mobile device to use.
Biden has just deployed 1500 troops to the border to assist with the expected surge of migrants once Title 42 is lifted on May 11. The military personnel will be stationed at the border for 90 days to do administrative tasks, freeing up border patrol personnel to interact with migrants and perform their law enforcement duties.
Is it all bad news? Not necessarily.
Currently, there are two humanitarian parole programs currently being implemented: Uniting for Ukraine and the Venezuelans, Cubans, Nicaraguans, and Haitians (VCNH) parole program –where U.S. citizens and permanent and temporary residents can sponsor migrants from these countries if they have the financial means to sustain them for two years. In January, the administration also launched Welcome Corps –a new private sponsorship program that allows a group of 4 people to sponsor refugees from all over the world.
Last week, the DHS also announced an increase in the number of refugees from the Western Hemisphere and new family reunification parole processes for families from El Salvador, Guatemala, and Honduras. Likewise, the administration announced the creation of Regional Processing Centers in Guatemala and Colombia where individuals from the region will be able to be interviewed and processed for potential pathways to the US, Canada, and Spain. These policies are pending implementation.
While we applaud the administration efforts to facilitate pathways for Latin American refugees to enter the United States, we do not agree with the administration’s efforts to export further south the country’s immigration dilemma by detaining more migrants and limiting asylum seeker’s access to legal representation and formal immigration proceedings. Untimely immigration court decisions are as unfair as a hasty decision that may hinder U.S. international law commitment of not returning asylum seekers to a country where they could be persecuted.
