This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Subscribe to future newsletters here.
The end of Title 42 this week has seen tens of thousands of migrants massing at the southern border, and an increase in border patrol apprehensions.
The pandemic-era policy allowed U.S. officials to expel asylum-seekers quickly, mostly at the southern border, and has led to nearly 3 million expulsions since going into effect in 2020. It expired Thursday at midnight.
Now, border policy falls solely under Title 8, the federal law that ordinarily determines immigration processing. It says asylum-seekers must be screened for a “credible fear” claim. The Washington Post has a helpful infographic about the changes that occurred this week, and their effects on asylum claims.
Asylum-seekers are people who say they are fleeing persecution on the basis of race, religion, nationality, political opinion or social group in their home countries. Other migrants may be fleeing economic hardship or seeking a better life. These distinctions matter, but also tend to overlap.
The end of Title 42 has spurred hopes among many asylum-seekers, but also raises the stakes for them. Under the old expulsion policy, there was no penalty for trying to cross the border again and again. Now, people who have their asylum claims rejected face deportation and criminal charges if they try to enter again within five years.
Border activity jumped this week. Some migrants tried to make it across before Title 42 expired, while others waited until after it ended, depending on their situation and what they had heard about the laws. As of Friday morning, there had been no significant increase in crossing attempts compared with earlier in the week, according to officials.
A number of officials (some on the border, and some thousands of miles away) issued emergency orders in preparation for an influx in migration activity. Along the border, humanitarian groups have been “lining up extra volunteers, stocking up on food and clothing, and reserving hotel rooms,” according to AZ Central. In San Diego, hospitals are preparing for a spike in injuries sustained by people scaling border walls.
The reasons thousands of people are coming from much of Latin America are extraordinary, as The New York Times cataloged. They include a pandemic-fueled increase in poverty, high unemployment, inflation, political turmoil and the rise of gangs and other armed groups.
“All I want to do is work and raise my son somewhere where we aren’t afraid of violence,” Francisco Ortiz, a 32-year-old from Honduras, told the Times. “We want to follow the rules, but it’s hard.” Those fleeing violence often find more of it while stuck in border camps in Northern Mexico, where many migrants have faced aggression and extortion attempts from organized crime groups.
The Biden Administration has tried to preempt some of the expected increase in asylum claims with messaging campaigns and new deterrence policies. The messaging includes efforts to counter false claims by human smugglers that the end of Title 42 means that the border is open. “Do not believe their lies,” Homeland Security Secretary Alejandro Mayorkas said in a message to migrants.
Under the new policy, the U.S. will generally deny asylum to people at the southern border who did not first seek protection in a country they passed through. (The policy does not apply to Mexican migrants who do not pass through other countries.) The Trump administration tried something similar, but was blocked in federal court. The Biden administration argues their policy is different from Trump’s version because it has also opened up legal pathways to humanitarian parole for a set number of people from Venezuela, Nicaragua, Cuba and Haiti.
Dozens of immigrant rights groups have panned the Biden administration’s moves. In a statement, Andrea Carcamo, policy director of Freedom for Immigrants, said the administration was “shamelessly doubling down on hardline policies that carry on a tried-and-failed deterrence approach in place of a humane system that offers life-saving protections to those fleeing persecution.” The American Civil Liberties Union has outlined plans to sue the administration over its asylum approach.
Meanwhile, Republicans continue to attack the administration as weak on border security. On Thursday, the GOP-controlled House passed an immigration bill that would resume construction of a border wall, fund more border patrol agents, and tighten laws requiring employers to verify that hires are eligible to work in the U.S. The bill faces long odds in the Senate and the threat of a presidential veto.
Because Congress has not passed comprehensive immigration reform for decades, presidential administrations have become the primary policymakers. Some of the Biden administration’s additional plans for a post-Title 42 world include:
An effort to release some migrants on parole to stem overcrowding in immigration facilities. Florida’s attorney general challenged it and a federal judge blocked it Thursday.
100 regional migration hubs across the Western Hemisphere where people could get information on pathways into the U.S., like applying for refugee status or labor visas.
An agreement with Mexico for that country to begin accepting non-Mexican migrants expelled by the U.S. That plan appeared to be complicated on Wednesday when the Mexican government said it would suspend operations at 33 migrant detention centers to allow for a review in the aftermath of a fire that killed 40 migrants in March.
Sending 1,500 U.S. troops to border regions to join the 2,500 National Guard troops already there to “aid U.S. Customs and Border Protection with surveillance and data entry.”
The administration has also tried to streamline the asylum process with the rollout of a smartphone app called CBP One, allowing people to schedule times to lawfully present themselves at the border. But the app is glitchy and requires a phone and a reliable cell connection, which not all asylum-seekers have. It has also been overwhelmed: By one account, “across the entire Southwest border, at any given point in time, there are an estimated 100,000 people attempting to register for the approximately 700-800 slots available each day.”
Juan Fernandez, a Venezuelan seeking asylum, told AZ Central that the app constantly buffers and kicks him out, and he hasn’t been able to book an appointment after trying for weeks. “We feel frustrated, and the days are running out,” Fernandez said.
