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Thursday, June 13, 2024 | Back issues
Courthouse News Service Courthouse News Service

Title 42 ends next week, leaving questions about the future of US immigration policy

The rule has been used to refuse legal asylum claims from migrants and to quickly expel people who cross the border.

(CN) — When President Joe Biden signed a bipartisan congressional resolution to end the Covid-19 public health emergency in April, a month before it was originally set to end, most people and institutions had already returned to operating the way they did before the pandemic began in March 2020 — except for when it came to asylum seekers at our southern border. 

After the initial coronavirus outbreak in March 2020, the Centers for Disease Control and Prevention and the Trump administration invoked Title 42, a public health measure from the 1940s that allows the federal government to suspend trade or immigration into the U.S. from a country where a communicable disease is present for any length of time deemed necessary to protect the country. The Trump administration and U.S. Customs and Border Protection have used the rule to refuse to hear legal asylum claims from migrants and quickly expel people who cross the border.

Over the course of three years, the policy has denied upwards of two million people from settling in the country.  

The policy is set to end on Thursday, the original date set for the end of the Covid-19 public health emergency, but what comes after it is still somewhat up in the air. 

“We’re worried about what comes after Thursday in terms of the notice of proposed rulemaking,” said Daniel Salazar, a policy analyst for the U.S. Committee for Refugees and Immigrants. “We’re primarily worried about the ways in which restrictions on asylum will be codified.”  

The notice of proposed rulemaking are the Biden administration, Department of Homeland Security, and Department of Justice’s proposals for immigration and asylum regulations that will replace Title 42.

The proposed, but not yet finalized, rules include setting up processing centers in countries where people are migrating to the U.S. from, say Colombia or Guatemala, to prescreen asylum seekers to assess their eligibility to get into the country. This policy is meant to deter people from showing up at the Mexican border and asking for asylum.

Unaccompanied minors are exempt from the propsed rule, meaning they can apply for asylum in the U.S.  

Asylum is a protection granted by a country to someone who faces persecution in their home country because of their identity. The U.S. has an obligation to accept asylum seekers under international and domestic law.

The federal government also created an app for smartphones called CBP One that asylum seekers are expected to use to schedule asylum interviews online.

Salazar said he’s also concerned about the backlog of asylum cases, and how that, and the shifting of government resources, might stall the process of people actually being granted asylum.

Salazar said he’s aware of at least one case of a man from Egypt whose asylum claim has been in the United States Citizenship and Immigration Services’ asylum claim system for a decade now.   

The new rules specifically mention that they are "designed to address the current and anticipated surge in migration throughout the hemisphere and further discourage irregular migration by encouraging migrants to use lawful, safe, and orderly processes for entering the United States and other partner nations, impose conditions on asylum eligibility for those who fail to do so, and support the swift returns of migrants who do not have valid protection claims."

In an effort to assist Customs and Border Protection, the White House announced plans to send 1,500 active duty soldiers to the border for 90 days in anticipation of many people applying for asylum once the Title 42 rules end.

Around 2,500 members of the National Guard are already stationed along border. The troops will monitor and perform administrative tasks and not act as law enforcement.

The most controversial of the proposed rules is one that would deny anyone the right to claim asylum if they cross into the U.S. without legal authorization. 

“In some ways they’re not relying on Title 42 authority anymore, but they’re still pushing people back,” said Erin Corcoran, the acting director for the Kroc Institute of International Peace Studies at the University of Notre Dame.

Corcoran said that the Biden administration's new rules could make it harder for asylum seekers desperate to flee to safety to actually present their cases to the proper authorities and leave asylum waiting in makeshift camps that are dangerous, especially for women and children. 

Corocran also pointed out concerns over the U.S.’s deportation policies. 

If an asylum seeker is detained by authorities for crossing the border illegally, the government can’t just send them back to their home country without permissio from the home country, so under an agreement with the U.S., Mexico will take in migrants from countries including Honduras, Guatemala, El Salvador, Venezuela, Haiti, Cuba and Nicaragua who are caught crossing the U.S. border.

In some ways, Corcoran said, the new rules are simply a continuation of the status quo.

“Certainly it will prevent some people from applying for asylum. It would restrict asylum seekers in major ways,” said Stephen Yale-Loehr, professor of Immigration Law Practice at Cornell Law School.

"There are a lot of unknowns," he added.  

Yale-Loehr said he expects some legal challenges to the new proposed rules if they are implemented, especially the rule denying people asylum claims if they cross the border before being granted permission. He also said there’s a possibility that a border state like Texas could sue the White House over the new rules. Additionally, a Senate bill backed by North Carolina Republican Senator Thom Tillis and independent Arizona Senator Kyrsten Sinema would effectively extend the Title 42 rules.

Both Yale-Loehr and Corcoran said immigration laws are always dependent on how they are enforced. 

“There’s always the ability to make discretions,” Corcoran said, pointing to the way refugees from Russia's invasion of Ukraine were allowed to remain in the U.S. as their asylum claims were being processed.

"If the people are like us, or we support their cause, there's a capacity there to absorb them,” Corcoran said. “It’s not the case that we can’t, it’s the case that we won’t.”

Categories / Government, Law

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