“To deter potential migrants once the order is lifted, the administration will rely on a new rule that will bar most people from applying for asylum if they cross the border illegally or fail to first apply for safe harbor in another country. Administration officials said the rule — a version of a Trump-era policy often called the “transit ban” — would be published Wednesday for public inspection. Migrants who get an appointment through the One app set up by Customs and Border Protection will be exempt, officials told reporters in a call Tuesday evening.
The administration will also expand expedited removal processes under Title 8, the decades-old section of the U.S. code that deals with immigration law. This allows the government to remove from the country anyone unable to establish a legal basis — such as an approved asylum claim. It would bar these migrants from the country for five years.
“The border is not open, it has not been open, and it will not be open subsequent to May 11,” Homeland Security Secretary Alejandro Mayorkas said during a press conference Friday.”
“Now that Title 42 has ended, migrants apprehended at the border are subject to what’s called “Title 8” processing, which, as the Biden administration has emphasized, carries more severe long-term consequences for those found ineligible for legal protections, including asylum.
Under Title 42, migrants who were turned away were not penalized for crossing the border without authorization, and in many cases attempted to reenter multiple times. But under Title 8, migrants found ineligible for legal protections are barred from reentering the country for at least five years and can be quickly deported through a process called “expedited removal” without ever appearing before an immigration judge. And if they do try to reenter, they can face criminal prosecution.
Biden administration officials are hoping that the new system serves as deterrence to migrants thinking about crossing without authorization and instead encourages them to pursue new legal pathways to the US.”
“Biden has expanded lawful pathways for migrants to come to the US with the aim of reducing pressure on the southern border. The Biden administration has already created a program under which the US-based family members of migrants from Venezuela, Haiti, Cuba, and Nicaragua — who have arrived in increasingly large numbers at the southern border in the last year — can apply to bring them to the US legally.
The administration has outlined a plan that involves opening new processing centers in Central and South America where migrants can apply to come to the US, Spain, or Canada legally. It’s unclear, however, when those processing centers will open. It has also pledged to accept 100,000 people from El Salvador, Guatemala, and Honduras under another family reunification program.
Some of those programs have proved successful. But they’re still not enough on their own to meet the current need for legal migration channels, after years in which Trump administration policies created pent-up demand, said Doug Rivlin, a spokesperson for the immigrant advocacy group America’s Voice.
“That’s not enough. And it can’t replace the need to have a functioning asylum system at the border,” he said.
To that end, the administration is also planning to speed up processing on the border, quickly identifying individuals who have valid asylum claims and turning away those who don’t.”
“New plans pushed by President Joe Biden are hardly what one might call migrant-friendly: The plans slowly expand tools for would-be immigrants to apply to come here legally (with no guarantees, of course) while making it much more difficult for those who actually try to cross the border to get legal status.
To the former point, Biden says the U.S. will set up more Regional Processing Centers where migrants can apply for legal immigration status in the U.S., Canada, or Spain from within Latin America, rather than simply show up at the U.S-Mexico border.
Regional Processing Centers are “designed to cut smugglers out of the equation by giving people access to protection and legal pathways earlier in their migration journey, and eventually before they cross international lines at all,” notes Andrew Selee at the Migration Policy Institute. However, “little is known as yet about how these centers will function in practice,” and “they will only exist in embryonic form, if at all, by the time Title 42 ends.”
Meanwhile, Biden has enacted new restrictions for asylum-seekers as well. These include “the adoption of stricter asylum rules that make it harder to get protection in the United States for those who have crossed the border unlawfully,” notes The New York Times:
“Under the old system, which critics called “catch and release,” many migrants who reached the United States would ask for asylum and be allowed to remain in the country until their case was resolved in immigration court.
The Biden administration’s new rule presumes that those who do not use lawful pathways to enter the United States are ineligible for asylum when they show up at the border. Migrants at the border can rebut this presumption only if they sought asylum or protection in another country through which they traveled en route to the United States and were denied safe haven there, or if they can demonstrate exceptional circumstances, such as a medical emergency.
They may have a phone interview from a border holding facility with an asylum officer, and can be quickly deported if they are found ineligible to apply. Unlike under Title 42, they will receive a permanent mark on their record that bans them from entering the United States for five years, and could face criminal charges.””
“Hundreds of active-duty U.S. troops are descending on the Mexican border this week, but they’re not authorized to make arrests, use their weapons or do much more than administrative work.
That’s making the military deployment — timed for the end of pandemic-era immigration restrictions — a classic no-win political situation for the Biden administration, which is getting hit from at least one prominent Democrat for perpetuating Trump-era militarization of the border, and from Republicans who say the mission will be utterly ineffectual.”
“Biden is responding to the expected end of Title 42, which has allowed the U.S. to deny asylum and migration claims for public health reasons. Officials say the expiration of Title 42 on Thursday will prompt an influx of Central Americans into the U.S.”
“Officials say they would have preferred to rely on law enforcement agents for the mission, but the Department of Homeland Security is short on people and money. So the administration is turning to what they have now, which is 1,500 active-duty troops. And officials say they will be there for only 90 days, until law enforcement can find contractors to do the work.”
“The 1,500 troops Biden is sending will be armed for self-defense only and are not authorized to use force, make arrests or otherwise act in a law enforcement role. This is in keeping with the Posse Comitatus Act, which prevents the active-duty military from enforcing the law inside the United States.
“Military personnel will not be permitted to support migrant processing and escort duties or other activities that involve direct participation in civilian law enforcement activities, be responsible for property seized from migrants, or require direct contact with migrants,” according to a statement from U.S. Northern Command.
Instead, they will be performing administrative tasks such as data entry, warehousing, and additional detection and monitoring support to free up Border Patrol agents to deal with the migrants.
They are joining 2,500 National Guard troops on active-duty status — also subject to Posse Comitatus — already doing similar work at the border since July 2022.
By contrast, Trump granted active-duty troops the authority to protect law enforcement agents if they engaged in violence in November 2018, a controversial move that put the military in direct contact with migrants.”
“Part of the reason Trump sent troops to the border in 2018 was to help build his long-promised wall along the Mexican border. The Pentagon was directed to send members of the Army Corps of Engineers to help lay miles of concertina wire and erect other barriers and fencing.”
“Trump also shifted billions meant for military infrastructure projects to finance the border wall. The move drew bipartisan opposition, but Congress wasn’t able to muster the support to stop Trump.
Biden canceled the project when he took office, but kept the National Guard presence on the border for other support missions.”
“As the White House gears up for the end of one Trump-era border policy this spring, it has its sights set on resurrecting a version of another much-maligned immigration program put in place under the previous administration.
The Departments of Homeland Security and Justice on Tuesday announced a proposed rule that will bar some migrants from applying for asylum in the U.S. if they cross the border illegally or fail to first apply for safe harbor in another country. The rule was previewed by President Joe Biden in January. Following a 30-day public comment period, it will be implemented upon the May 11 end of the Covid public health emergency, according to a senior administration official who briefed reporters.
May 11 is also the end date of the Title 42 public health order currently being used to bar entry to most migrants at the southern border. The rule announced on Tuesday would stay in place for two years following its effective date.”
“Administration officials also used Tuesday’s announcement to criticize Congress, arguing that the White House has been left to roll out new policies to fill the “void” left by inaction on the Hill.
“To be clear, this was not our first preference or even our second. From day one, President Biden has urged Congress to pass comprehensive immigration reform and border security measures to ensure orderly, safe and humane processing of migrants at our border,” a senior administration official said.”
“The city spent $366 million on services for asylum seekers last year, and Adams expects that sum to rise to $2 billion through June. Thus far, New York City has received just $8 million from the Federal Emergency Management Agency and $2 million from Senate Majority Leader Chuck Schumer.
“This is a national crisis. FEMA deals with national crises. FEMA must step up, and there should be one coordinator to coordinate everything that is happening dealing with migrants and asylum seekers in our country,” Adams said.”
“Title 42, an immigration policy put into place during the pandemic, was scheduled to be lifted Wednesday, but Chief Justice John Roberts temporarily blocked the border rule at the urging of 19 Republican-led states, which appealed the plan to open up the nation’s borders again.
The stay by Roberts is temporary, and states are bracing for what’s next if — and when — Title 42 is eventually lifted. There’s added anxiety too over whether Republican governors will transport thousands of migrants to Democratic-led strongholds by bus or plane, as Texas Gov. Greg Abbott and Florida Gov. Ron DeSantis did this year.
Over the last month, thousands of migrants have crossed into the U.S. at the Texas border ahead of the expiration of Title 42, a Trump administration pandemic policy that allows the U.S. to expel migrants in order to stem the spread of the Covid-19 virus. Last weekend, the mayor of El Paso declared a state of emergency to help manage the rush of people while Abbott deployed hundreds of Texas national guard and state troopers along the border to block migrants from entering the U.S.”
“The migrant issue hasn’t gone unnoticed in Congress. Special funding in the federal spending bill released this week could take the pressure off of cities like New York, Chicago and Washington, as they try to handle the rise in immigrants and the challenges to provide shelter, food and other basic needs. Cities could apply for a piece of the $800 million that Congress has carved out to handle the flow of migrants if the spending is approved.
Adams, who earlier this week asked for $1 billion to help New York handle “the brunt of this crisis,” said he was “encouraged” by the federal funding, but said that should just be the start.
“With over 800 people arriving in the past four days alone, it’s clear that we still need a comprehensive strategy at our border and additional resources. We cannot be put in a position where we have to choose between services for New Yorkers and supporting arriving asylum seekers,” he said in a statement. Adams has also called for asylum seekers to be authorized to work before six months.”
“Biden administration officials are now working to undo some of the harmful legal policies put in place by Trump-era attorneys general—less visible than controversial measures like the border wall and family separation, but nonetheless damaging to due process and punitive toward the people who seek asylum on American soil. Last June, Attorney General Merrick Garland scrapped rules that made it difficult for victims of domestic violence or gang violence, as well as family members of threatened individuals, to qualify for asylum.”
“On his first day in the presidency, Biden began to tackle some of the harsh immigration measures imposed by Trump. He lifted Trump’s so-called Muslim ban, which prevented citizens of seven predominantly Muslim countries from coming to the U.S. He signed an executive order halting construction of a wall at the U.S.-Mexico border. And he sent the U.S. Citizenship Act of 2021 to Congress. Among other things, that bill set out to create a path to citizenship for undocumented people, clear backlogs in the family-based immigration system, and improve immigration courts.
However, many of those early wins—and supposed reversals of Trump’s policies—came with asterisks. Biden was right to rescind Trump’s “Muslim ban,” but nearly all families affected by the policy remained separated because of visa application backlogs. He was right to halt construction of the border wall (which was never going to work), but his administration failed to stop Trump’s land grab lawsuits and the federal government continued to seize private property along the U.S.-Mexico border through eminent domain. That ambitious immigration bill has gone nowhere.
Since taking office, Biden has cherry-picked which of Trump’s most controversial policies he’ll keep and which he’ll discard. The ones he’s kept are cruel, counterproductive, and are failing to please either side of the political aisle.
Key among them is Title 42, which critics say violates longstanding U.S. asylum law. The policy was first imposed by the Trump administration and allows Customs and Border Patrol (CBP) to expel migrants on public health grounds. Deprived of the opportunity to present their cases for asylum, migrants are very often returned to dangerous communities and countries. Biden has kept Title 42 in place, even though it was the brainchild of notoriously anti-immigration Trump adviser Stephen Miller. Centers for Disease Control and Prevention officials have questioned its efficacy as a COVID-19 mitigation measure from the very beginning.
CBP expelled over 1 million people under Title 42 in 2021, with over 7,000 migrants getting kidnapped and attacked by cartels and Mexican authorities post-expulsion since Inauguration Day. The Biden administration has also used Title 42 to deport thousands of Haitians to Haiti, even though many of the deportees hadn’t lived in Haiti for years and were actually coming from South America. Some Biden appointees have suggested that the president’s continuation of Title 42 “is largely based on optics—that it’s staying in place because of concerns that ending it will fuel perceptions of a chaotic border.”
But Biden’s critics falsely claim that the Southern border is open. It’s true that CBP reported a 21-year high of 1.66 million migrant encounters at the border in fiscal year 2021. The majority—61 percent—of those apprehensions resulted in Title 42 expulsions, and the figure fails to account for repeat crossings. “Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings,” writes The Washington Post’s Catherine Rampell. Over one-quarter of encountered individuals were apprehended multiple times by CBP, Rampell notes—”nearly quadruple the share in 2019.”
All the while, inefficiency has plagued day-to-day aspects of the U.S. immigration system. Two years into the pandemic, 60 percent of U.S. embassies and consulates are still partially or completely closed for visa processing. Nearly 440,000 immigrant visa applicants whose cases are “documentarily complete” are still waiting for visa appointments (the State Department scheduled just 26,605 appointments for this month). The nation’s refugee intake hit a record low in fiscal year 2021 and our numbers aren’t on pace to be any better in 2022. Legal immigration collapsed under Trump; it hasn’t rebounded under Biden.
All that said, it would be unfair to say that Biden’s immigration policy has been a complete failure. The administration evacuated a staggering number of Afghans after their country fell to the Taliban in August. Visa processing has been imperfect and many vulnerable people are still trapped in Afghanistan, but the Biden administration smartly introduced a private refugee sponsorship program that allows U.S. citizens to help support and resettle evacuated Afghans. Biden has rescinded some Trump-era rules that needlessly slowed down visa and work permit processing, and recently added 20,000 visas to this fiscal year’s cap for the nonimmigrant nonagricultural worker H-2B visa. The administration restarted the Central American Minors program, which allows at-risk children from El Salvador, Guatemala, and Honduras to come to the U.S. as refugees.”