After the outbreak of COVID-19 in March 2020, Trump’s administration invoked Title 42 to curb the spread of the virus. The immigration policy was first developed by health experts in 1944 to curb the spread of infectious diseases. The policy was effective for three years until May 2023, enabling US authorities to turn down asylum applications at the border without allowing the undocumented migrants to present their cases under the pretext that their admission could spread the virus.
Asylum refers to protection granted to individuals unable to return to their homelands due to fear of persecution. During Biden’s campaign, he promised to do away with Trump's hardline immigration policies, including Title 42. Sadly, after Trump’s policy expired, Biden announced fresh immigration measures that disqualify asylum-seekers who arrived irregularly at the southern border. The policy also gave immigration officers authority to remove immigrants without a legal basis to avoid burdening border patrol.
Title 42 and the Path it Took
President Trump was the first to invoke Title 42 after the COVID-19 outbreak. The policy enabled border agents to deny particular migrants admission into the country if they believed their presence increased the spread of COVID-19. With the rule, border agents could turn away asylum seekers at their country's borders without allowing them to apply. Others who were not sent home were placed in federal facilities pending expedited removal.
Between the period the policy was invoked and its expiration, tens of thousands of migrants were deported under the pretext of protecting public health.
Immediately after the rule was implemented, it faced many legal challenges, as many people were opposed to it and believed it risked the lives of many people, particularly the asylum-seekers. Trump was criticized for his hardline border immigration measures. One of those who criticized the policy is Biden, who, during his campaigns in November 2020, promised to reverse some of these hardline policies for more humane ones.
Despite criticism after taking office in January 2021, Biden did not immediately reverse Title 42. Nevertheless, the government stopped the removal of unaccompanied minors according to the November 2022 ruling by the federal court stopping the use of the immigration policy to deport unaccompanied children.
The decision to allow unaccompanied children led to a surge in the number of migrants being processed at the border. In August 2020, the government renewed Trump’s Title 42 rule, going against their promise to the people. The decision was informed by the need to reduce the surge in the number of undocumented migrants at various Department of Homeland Security (DHS) offices. The government claimed that the overcrowding increased the public health risk.
In April 2022, the Center for Disease Control and Prevention (CDC), which invoked Title 42 under Trump’s regime, said that the policy was no longer necessary as COVID-19 was no longer a public health risk. However, the rule was to remain effective until its expiration in May 2024.
Under pressure to lift the policy, the administration devised a plan to involve countries around America to manage migration. This led to the Los Angeles Declaration.
In October 2022, Mexico agreed to admit Venezuelan refugees deported from the U.S. under Title 42. The government also temporarily allowed undocumented migrants to work in the country but did not provide pathways to naturalization.
Later, in January 2023, the administration said it planned to end the Public Health Act, which is Title 42, in May 2023, which would expire the rule.
However, in February 2023, the administration announced fresh border immigration measures, preventing asylum seekers from applying for protection if they did not start the process and got rejected in another country. Critics considered this a ban on asylum-seeking similar to President Trump's in 2019.
Title 42 Expiration
In December 2022, the government experienced the highest number of immigrants from the Southern Border, with authorities handling over 251,487 migrants crossing the border unlawfully. This was happening despite Title 42 being in effect, forcing the government to anticipate a further increase in crossers after the lapse of the policy. In anticipation of an increase in the number of migrants crossing from the Southern Border, the state revealed a proposal to take measures to secure the border. The state was anticipating 10,000 crossings a day towards the expiry of the public health policy.
Therefore, towards the end of Title 42, Biden’s administration sent fifteen hundred troops to the US/Mexico border to support border patrol. 1,400 staff and 1,000 processing coordinators from the DHS were also sent to the border for reinforcement.
In the meantime, the government was developing fresh border immigration measures aimed at incentivizing legal immigration pathways.
After the rule expired on 11 May 2023, Washington announced new immigration measures the following day, which many interpreted as a ban on asylum. Many welcomed the end of the rule, but unfortunately, the measures implemented later seemed to continue to undermine the rights of asylum seekers.
Asylum is an international statute principle that lets persons seek protection when fleeing their homeland. They cannot return because of war or fear of persecution because of political opinion, religion, race, or nationality. Congress later adopted the international law. The US immigration law requires all aliens on American soil to have the chance to the rightful process to seek asylum.
A person seeking asylum has fled their mother country due to safety to seek protection in another country. Therefore, these people are less likely to have time to apply for asylum in their homeland or other countries before seeking asylum in the US. Approval of the application takes 36 to 60 months, which is impossible for someone fearing for their safety to stick around. So, when the state introduced a policy barring applicants who came through other countries before reaching the US/Mexico border if they had not previously applied for asylum in these countries or their applications were rejected, it amounted to an asylum ban because most applicants were ineligible.
The policy goes against Biden’s promise to the electorate to impose more humane border immigration measures. The new system left many applicants out, exposing them to the dangers they were fleeing from their countries.
The ban faced much opposition, with many people calling for the government to rescind the unlawful policy, which was against the state’s immigration statutes and international law.
Furthermore, in May 2023, Washington announced plans to open two migrant processing facilities in Colombia and Guatemala with US authorities. The goal was to expedite the screening and removal of migrants who access the border unlawfully or are unqualified for asylum. Besides, the measures were aimed at demonstrating to applicants that those seeking admission through the border must follow the legal pathway. However, the rule exempts applicants who could not apply because of significant technical failure in the CBP One App or extraneous circumstances.
Also, unaccompanied children and applicants who sought asylum but whose applications were rejected are exempt from the asylum ban.
The presumption is that persons who avoid the legal pathways for seeking asylum are ineligible and, therefore, subject to removal, as the state assumes they cannot demonstrate fear of war or persecution. The rule sets the bar high for individuals applying for asylum through other pathways.
Biden’s New Border Immigration Restrictions
On June 4, 2024, Biden issued an executive order barring migrants from crossing the US/Mexico border without authorization from applying for asylum. Authorization means the migrant must arrive at the country through an official border entry point or have a CBP appointment.
The restrictions took effect when the encounters at the US/Mexico border exceeded the daily crossing limit of 2500. If the number of daily crossings drops to 1,500, the new measures will remain in effect for 28 consecutive days. If the daily crossings surge again, the measures will be reimposed.
Nevertheless, the executive decree exempted unaccompanied minors and human trafficking victims. Exceptions also apply to applicants who demonstrate fear of persecution if they return to their homeland. In particular, vulnerable persons can also be allowed into the country to obtain humanitarian assistance.
While the administration has previously imposed strict immigration measures on the border, the recent ones have been the most stringent on the US/Mexico border. The previous immigration measures by the administration have made asylum difficult, but those in June 2024 were the harshest. With the current measure, once the daily encounters of 2,500 are reached and you have not been attended to, your right to asylum is temporarily suspended.
Reasons Restricting Asylum
Regardless of the pathway to arrive in the US, individuals fleeing for fear of persecution are allowed to seek asylum if they can prove the threat, as theirs is a matter of life and death. However, the current administration questions this theory or system because it causes a massive backlog, creating room for unqualified persons to enter the country and apply for asylum.
Once a person applies for asylum, they are allowed to remain in the country for three to five years pending review of their application. As such, they cannot be deported. Nevertheless, the reasons given by Washington were not convincing because the recent restrictions will force many migrants to avoid official border entry points and opt for more dangerous routes to enter the US.
Effects of the Restrictive Border Immigration Measures
The proclamations by the government will have severe adverse effects. Human rights organizations warn the government that the measures will deny people asylum when they need it most. Also, critics of these recent border measures say that if the state makes it difficult for migrants to access the country through official border points, they will encourage many to utilize dangerous routes to access the country without authorization, risking people’s lives.
Similarly, the asylum restrictions will delay appointment scheduling through the CBP One App, resulting in overcrowding on the southern border. When this happens, many refugees or migrants will wait for appointments or admission in dangerous conditions, risking their lives and health.
Title 42 also led to humanitarian needs as asylum applicants waited years before obtaining protection from the United States. Those deported or denied admission are also easy targets of criminal organizations and human traffickers, as they are exposed to murder, human trafficking, and rape. Also, human traffickers target asylum seekers and exploit their desperation to enter the US to make money.
Black asylum seekers have also been victims of language barriers. Besides, there have been many racism cases, with many people facing discrimination and violence at the border.
Rectifying the Situation
Biden has issued several executive orders on border immigration rules, including resettling migrants from Latin America and forming a task force to unite families separated when Title 42 was in effect.
Nevertheless, the administration continues defending the asylum ban, which is against international and federal statutes. The state should rescind the executive directive that took effect on 5th June 2024, which imposed further restrictions on people applying for asylum.
Human rights groups opposed to the recent border immigration rules recommend the following solutions:
- For the state to lift the asylum ban, the June 2024 executive decree, and the September amendment because they make most asylum seekers ineligible and instead implement Title 8, which has been governing migrants removal for the longest time. However, this rule bars deported asylum seekers from re-entering the country for five years. Therefore, with Title 8 in effect, deported applicants risk criminal charges if they attempt to enter the country unlawfully or before the lapse of the ban period.
- The government should also adopt humane measures when handling asylum applicants, including encouraging humane reception, effectively managing cases in the long run, educating migrants of their constitutional rights, and providing resources to communities to fight trafficking.
It is unclear what will happen to people seeking asylum after arriving at the border irregularly, as the new rule makes them ineligible.
Find an Experienced Immigration Attorney Near Me
With the recent border immigration measures suspending asylum applications for individuals who arrive irregularly, immigrants without proper documentation or who attempt to enter the country unlawfully risk criminal charges and severe penalties. If you risk removal or rejection at the border due to these policies, you should be updated with the recent border immigration rules to avoid legal trouble. At the Orange County Immigration Attorney, we will explain these new measures and help you navigate this complex process to obtain asylum or admission in the country. Call us at 714-909-0426 to arrange a meeting.