Immigration State of Play Post-Title 42

Understanding Title 42

For more than three years, the United States government has used its authority under the Title 42 public health law to rapidly expel migrants back to Mexico without due process, including those who fled their countries out of fear of persecution or torture. The right to seek asylum is enshrined in both U.S. and international law; but Title 42 allowed the government to effectively suspend that right.  

As a result, Title 42 expulsions forced thousands of vulnerable migrants, unable to return to their countries out of fear of substantial harm to wait in Mexico for their opportunity to seek asylum in the United States. 

Title 42 is set to expire on May 11, and the United States is legally required to resume processing migrants under Title 8 of the U.S. Code. However, the Biden Administration seeks to continue to restrict access to asylum, in contravention of U.S. and international law.

What is Title 8?


In the lead up to the end of Title 42, the Department of Homeland Security requested an additional 1,500 military personnel be deployed to the Southern Border and announced a slew of new policies aimed at deterring migrants from traveling to the United States outside of limited “lawful pathways” and restricting access to asylum processes.

What New Policies Have Been Announced?

In late April, DHS announced its response to the end of Title 42 in the form of its Regional Migration Management Measures. To their credit, these new measures look beyond the processing issues at the Southern border and announce a number of additional policies aimed at addressing mass migration in the Western Hemisphere. However, they also establish a set of policies aimed at restricting asylum for individuals who do not utilize specific and limited pathways and introduce a modified version of a Trump-era asylum transit ban previously held to be unlawful.  

In relation to new migration pathways, DHS announced the creation of two regional processing centers in Colombia and Guatemala, which would help identify candidates for the U.S. refugee resettlement program and other options outside of migration to the United States. It also announced an increase in the number of refugees the United States plans to accept from the Western Hemisphere.  Furthermore, DHS plans to expand the Family Reunification Parole process to eligible family members from El Salvador, Guatemala, Honduras and Colombia. The Family Reunification Parole process currently exists for certain Haitians and Cubans and allows individuals with already approved family petitions from those countries to enter the Unites States under parole while their family-based visa is pending. Lastly, the DHS plans to continue its parole process for Nicaraguans, Cubans, Haitians, and Venezuelans (NCHV), which allows certain individuals in the United States with legal status to sponsor individuals from these four countries to live and work in the United States for two years.  

While these new policies offer some individuals a path towards migration to the United States, they are also quite limited. For instance, the NCHV parole process only offers a limited-time parole status in the United States and is not available for individuals who previously attempted to enter the United States without permission, including Haitians and Cubans who are interdicted at sea and returned to their country.  

Individuals who wish to seek asylum in the United States must request an appointment to present at a U.S. port of entry through the CBP One App. This application, only available on certain smartphone devices, and only in English, Spanish, and Haitian Creole, allows an individual and their family, in theory, to create an account, and apply for an appointment at a designated port of entry. However, since its launch, the CBP One app has been plagued with issues, including over-demand for appointments and the inability to facially recognize applicants with darker complexions. DHS recently announced new updates to the app and plans on expanding scheduling to 1,000 daily appointments border wide. However, for migrants whose sole chance of seeking protection in the United States depends on successfully scheduling an appointment through CBP One, the app feels like a lottery to save their lives.  The DHS has stated it will process individuals who approach a port of entry without a CBP One appointment as capacity allows, which raises concerns of potential turnbacks and waiting lists—issues that previously plagued border processing.  

Limiting Access to Asylum

Harsh, punitive measures await migrants who do not avail themselves of these limited pathways. First, according to a new rule finalized on May 10, any individual who does not utilize CBP One, one of the other pathways discussed above, or who does not seek asylum or protection through another country through which they travelled on the way to the United States is presumed to be ineligible to seek asylum in the United States.1 The Biden Administration is ignoring the universal legal principle that individuals present in the United States who fear persecution if returned to their home country have a legal right to seek asylum regardless of how they entered the United States.  

Second, DHS plans to rely heavily on expedited removal to swiftly remove individuals from the United States, including by revamping another Trump-era policy of processing individuals while in Customs and Border Patrol custody. This new policy truncates an already rushed process while making it almost impossible for an individual to consult with an attorney prior to their credible fear interview, among other due process concerns 

Third, DHS plans to increase removal flights to ensure swift removal of migrants and recently announced that individuals from Cuba, Nicaragua, Haiti and Venezuela (countries where removal flights are harder to coordinate) will be deported directly to Mexico. Furthermore, unlike during Title 42, where expulsion to Mexico did not carry immigration consequence, deportation to Mexico for these nationalities (and for anyone deported) carries with it a five-year ban on re-entry and potential criminal prosecution for illegal re-entry 

1 The final rule allows for some exceptions, including if an individual can establish that it was “not possible to access or use the CBP One app due to a language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle,” if they are an unaccompanied minor, a victim of a severe form of trafficking in persons, or otherwise faced an imminent and extreme threat to life and safety, etc.

What Does it All Mean?

Currently, all eyes are on the U.S. border as the end of Title 42 approaches. Vulnerable migrants, many of them asylum seekers, who have been waiting for years to seek protection in the United States are hopeful to be able to access the U.S. immigration system. Simultaneously, the Biden Administration is actively seeking to deter asylum seekers from looking to the United States for protection, imposing new policies which aim to deny asylum processes to all but those who are lucky enough to secure an appointment with CBP One. New policy proposals relating to “lawful” pathways do not address the plight of the most vulnerable people and families seeking to access long-term safety within the U.S. Many immigration advocates believe these new measures fall short of the U.S. government’s obligations to ensure asylum access and respect the human rights of vulnerable individuals. At Americans for Immigrant Justice, we believe that the end of one inhumane border policy should not result in the implementation of numerous others and call on the Biden Administration to uphold the right to seek asylum in the United States.