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Biden administration reboots asylum process after Title 42 immigration policy expires

The Biden administration reverted to pre-pandemic policies on May 11, allowing officials to process asylum claims and restoring penalties for unauthorized border crossings.

By Oliver Willis - May 16, 2023
Asylum seekers hold their phones through the border wall as they plead with the volunteers who are charging phones to choose their phone next.
Asylum seekers hold their phones through the border wall as they plead with the volunteers who are charging phones to choose their phone next. (Photo by Jon Putman / SOPA Images/Sipa USA)(Sipa via AP Images)

The Biden administration began processing the asylum claims of migrants under pre-COVID immigration procedures on Tuesday following the expiration on May 11 of a border policy put in place by the Trump administration in March 2020 under Title 42 of the United States Code, which governs public health measures.

The policy, implemented on the basis of the public health emergency that was declared at the outbreak of the coronavirus, allowed for the rapid removal of migrants from the United States and denied them the right to apply for asylum.

The Department of Health and Human Services said in a fact sheet released on May 9 that as a result of widespread vaccination, the availability of COVID-19 test kits, and a considerable decrease in the numbers of deaths and hospitalizations, the virus “is no longer the disruptive force it once was.”

The policy instituted under Title 42 denied most migrants the ability to seek asylum: Only families and children traveling alone were exempt from the restrictions, and while the policy was in place, migrants were turned away at the border over 2.8 million times. Civil rights groups have argued that the change in asylum policy violated the civil rights of people fleeing from oppressive regimes and violent situations.

Starting on May 11, the government has reverted to Title 8 of the U.S. Code to process asylum claims in a return to its pre-pandemic process. Migrants will once again be able to apply for asylum and have the merits of their petitions decided by judges. It also includes a ban on reentry of ineligible asylum applicants to the United States that can last up to five years, and violators could be subject to criminal penalties.

The transition to Title 8 is largely a return to how immigration claims were processed before COVID, but the Biden administration said it is devoting more resources — border agents, judges, contractors and the military — to processing claims and securing the border region.

“Our approach, to build lawful, safe, and orderly pathways for people to come to the United States, and to impose tougher consequences on those who choose not to use those pathways, works,” said Secretary of Homeland Security Alejandro Mayorkas during a May 11 briefing  at the White House.

Secretary of State Antony Blinken said during a press conference on April 27 that the administration is creating centers for processing migrant applications in Guatemala and Colombia.

Title 8 is being implemented along with policies that prevent migrants who come to the United States by traveling through Canada and Mexico after leaving their home nations from applying for asylum. In January, Biden said the policy was designed to protect migrants from harsh and potentially deadly conditions they may encounter while traveling to America by encouraging them instead to apply for asylum from their own countries. 

But the Biden administration is continuing an existing humanitarian parole program for immigrants from Nicaragua, Haiti, and Cuba. The Department of Homeland Security is also creating a new family reunification parole process for migrants from Guatemala, Honduras, Colombia, and El Salvador. Parole programs allow migrants from countries facing humanitarian crises to be unified with relatives in America.

The American Civil Liberties Union is suing the administration over the penalties prescribed for migrants who pass through other countries to the U.S., calling them “cruel and illegal.”

In the first weekend since the change in policy, Mayorkas told CNN in an interview, there were nearly 50% fewer unlawful crossings compared with the previous week.

President Joe Biden has called on Congress to pass immigration reform, which has long been opposed by Republicans in Congress. In his May 11 remarks, Mayorkas criticized Congress for its lack of action.

“Our current situation is the outcome of Congress leaving a broken, outdated immigration system in place for over two decades, despite unanimous agreement that we desperately need legislative reform. It is also the result of Congress’s decision not to provide us with the resources we need and that we requested,” Mayorkas said.

Published with permission of The American Independent Foundation.

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