Title 42, a public health order that allowed the US government to expel asylum seekers without processing their claims, expired on May 11, 2023. This means asylum seekers will once again be able to enter the United States and seek asylum at ports of entry.
Initially enacted in 1944 to prohibit the spread of cholera and yellow fever, Title 42 gave the US Surgeon General the authority to prevent people’s entry from a foreign country during an infectious disease crisis. During the COVID-19 pandemic and under the direction of the Centers for Disease Control and Prevention (CDC), Title 42 has been used to expel over 2 million migrants without processing their asylum claims since March 2020.
The end of Title 42 is expected to increase the number of asylum seekers arriving at the US-Mexico border. The Biden administration has said it’s prepared for this increase and has taken steps to increase capacity at ports of entry to improve the asylum process. However, some experts are concerned that the end of Title 42 could lead to a humanitarian crisis at the border. They worry that the Biden administration will be unable to process asylum claims quickly enough, and asylum seekers will be forced to wait in Mexico for months or even years before their cases are heard.
Unfortunately, the end of Title 42 has been a controversial topic with no clear consensus on its impact. Here are some issues we’re following that may affect asylum seekers.
Increased number of asylum seekers arriving at the US-Mexico border
The week following the end of Title 42, the number of migrants attempting to cross the border increased by 22% compared to the previous week. But for now, the numbers have dipped. A recent article quotes the Chief Operating Officer of the US Customs and Border Protection, “Over the last three days, we have seen approximately a 50 percent decrease in encounters compared to the days leading up to the end of Title 42.”
But the Biden administration has said it expects to see more migrants arriving at the border in the coming weeks and months. Several factors will likely contribute to an increased number of asylum seekers at the border. First, under Title 42, migrants were quickly expelled back to Mexico, even with a legitimate asylum claim. The end of Title 42 means that migrants can now seek asylum in the United States, likely encouraging more people to journey to the border.
Another contributing factor is the ongoing humanitarian crisis in Central America. Many people in Central America flee violence, poverty, and political instability. The US has said it will accept up to 30,000 people per month from Venezuela, Haiti, Nicaragua, and Cuba if they come by air, have a sponsor, and apply online first. The government will also allow up to 100,000 people from Guatemala, El Salvador, and Honduras into the US who have family here. Other migrants also may be allowed in if they apply through the CBP One app. The app will now be accessible to 1,000 people per day, up from 740 per day previously.
The Biden administration has said that it is prepared to handle the increase in asylum seekers at the border. The administration has increased the number of immigration judges and asylum officers and opened new processing centers at the border. However, it remains to be seen whether the administration will be able to handle the influx of asylum seekers.
Longer wait times for asylum hearings
The Biden administration has taken steps to increase capacity at ports of entry. However, some experts are concerned that the government will be unable to process asylum claims quickly enough, forcing migrants to wait in Mexico for months or even years before their cases are heard.
There has been evidence of longer wait times for asylum hearings due to Title 42 ending. The Transactional Records Access Clearinghouse (TRAC) has been tracking the wait times for asylum hearings since 2001. In the week following the end of Title 42, the average wait time for an asylum hearing increased by 20% compared to the previous week. The average wait time for an asylum hearing is now over two years.
With Title 42 lifted, the US government has resorted to using Title 8 at the border. 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. In addition, those who make subsequent attempts to enter the US could face criminal prosecution. But the processing time for Title 8 is lengthy compared to Title 42.
Over 1.6 million asylum cases are pending, but only 600 immigration judges are available, causing a significant backlog. Many asylum seekers are fleeing violence and persecution in their home countries, and they need to get their cases heard quickly so that they can be granted asylum and start rebuilding their lives in the United States.
Increased risk of violence and exploitation for asylum seekers waiting in Mexico
Since Biden took office, Human Rights First says it’s identified more than 13,000 incidents of kidnapping, torture, rape, or other violent attacks on people blocked or expelled to Mexico under Title 42. But, unfortunately, the end of Title 42 does not mean the end of the danger risk for asylum seekers.
According to CNN, the administration plans to return Cubans, Venezuelans, Haitians, and Nicaraguans to Mexico if they cross the border unlawfully, marking the first time the US has sent non-Mexican nationals back across the border. The rule was predicated on the idea that migrants could get protection in another country or get an appointment online to seek asylum in the US. This has put a strain on resources in Mexico, and it has made asylum seekers more vulnerable. Katrina Eiland, the managing attorney with the ACLU Immigrants’ Rights Project, stated, “The Biden administration’s new ban places vulnerable asylum seekers in grave danger and violates US asylum laws.”
Many factors have contributed to the increased risk of violence and exploitation for asylum seekers in Mexico. One factor is the lack of resources. There are not enough shelters or other places for asylum seekers to stay, and they often have to sleep on the streets or in dangerous areas. Another factor is the presence of organized crime. Several criminal groups operate in Mexico, targeting asylum seekers for extortion or kidnapping. Asylum seekers are also vulnerable to human trafficking.
Increased strain on US immigration resources
The Biden administration has said that it is working to increase funding for immigration enforcement and to improve the asylum process. However, the end of Title 42 will likely increase the number of asylum seekers arriving at the border, which will strain already-limited resources.
- Border patrol agents are facing a surge in the number of migrants arriving at the border. This strains the agents’ physical and mental health, making it difficult for them to do their jobs effectively.
- Immigration courts are facing a backlog of cases.
- Shelters are facing a shortage of beds, food, and medical care.
- The CBP One app, which is required for asylum seekers to make interview appointments, has been riddled with technical glitches and offers only 1,000 appointments per day.
Holding facilities at the border, meant to keep people temporarily, cannot hold the volume of people expected to come. Before a federal judge blocked the release plan, agents were instructed to release migrants from holding facilities if the facilities were at 125% capacity or the average time in custody exceeded 60 hours. They were also instructed to start releasing migrants if 7,000 migrants were taken into custody across the border on any day. The released migrants would have been instructed to appear at an immigration office within 60 days or face deportation.
Border cities like Brownsville, El Paso, and Laredo have issued emergency declarations, which give the city more resources to deal with the influx of migrants. Chicago, which has seen thousands of migrants bused in from Texas, issued its own emergency declaration. In NYC, the mayor has suspended portions of its right-to-shelter rules. It comes as some NY counties have condemned the city’s move to send migrants upstate.
The Department of Homeland Security released a six-pillar plan that outlined operations post-Title 42, including setting up additional facilities along the border to process migrants. Other plans involved sending 1,500 active-duty troops to the border and reportedly deploying about a thousand asylum officers to help expedite screenings. Meanwhile, the Biden admin is also setting up processing centers in Latin America to give qualified migrants the option of entering Canada or Spain instead of the US.
Increased political polarization around immigration
The anticipated increase in migrants arriving at the US-Mexico border has led to increased political polarization around immigration, with Republicans and Democrats largely divided on the issue.
Republicans have largely criticized the Biden administration for ending Title 42, arguing that it will increase illegal immigration. They have also argued that the administration is not doing enough to secure the border. Democrats, on the other hand, have largely defended the Biden administration’s decision to end Title 42, arguing that it was a discriminatory and inhumane policy. They have also argued that the administration is doing everything possible to secure the border while upholding asylum seekers’ rights.
President Biden initially kept Title 42 in place after he took office, then tried to end its use in 2022. Republicans sued, arguing the restrictions were necessary for border security. Courts had kept the rules in place. But the Biden administration announced in January that it was ending national COVID-19 emergencies, so the border restrictions have gone away.
Biden has said the new changes are necessary, partly because Congress has not passed immigration reform in decades.
A new bill passed by House Republicans aims to bolster border security and impose restrictions on asylum seekers. The bill requires asylum seekers to pay a $50 fee to cross the border legally and meet more rigorous criteria during initial interviews to establish a credible fear of persecution in their home country. Democratic lawmakers claim these provisions fail to address the root causes of migration and constitute a “ban on asylum.” Despite the backlash, House Republicans have rallied behind the bill, claiming it is a necessary step to curb illegal immigration and protect national security.
Although the bill is unlikely to become law because President Biden pledged to veto it, the legislation has sparked a renewed conversation about immigration reform in the Senate. The bill’s passage could drive a separate measure combining robust border enforcement and expanded legal immigration, including work visas and potential citizenship paths for undocumented immigrants.
It is still too early to say what the full impact of the end of Title 42 will be. However, this significant change will have a major effect on asylum seekers. If you have questions on asylum for yourself or someone you know, please contact us today.
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