The End of Title 42 Might Be Chaotic, But It Doesn’t Have to Be Confusing. Here’s What You Should Know
Title 42 – a policy that has allowed the U.S. government to expel border-crossers without giving them a chance to seek asylum – is expected to officially sunset next week. Federal courts prevented the Biden administration from lifting the “public health” order until it lifted the nationwide state of public health emergency. It’s doing so on May 11, and Title 42 is expected to formally end then.
The number of people crossing the U.S.-Mexico border is rising rapidly even before Title 42 ends, with over 20,000 people in Customs and Border Protection custody at the end of April. The government expects that even more people will come once Title 42 is over. While the administration has worked to create alternative legal ways for people in the Western Hemisphere to come and work in the United States – and has just launched some new initiatives as well – communities on the Mexican side of the border are already seeing tens of thousands of desperate people who have waited months or years to enter the U.S.
The answer to “what comes after Title 42” is still taking shape. But the broad contours are in place: a return to stricter federal enforcement penalties, coupled with efforts to shove as many asylum seekers as possible through an abbreviated and likely restricted asylum process, and temporarily expanded processing capacity that may not be enough to prevent the government from having to release large numbers of asylum seekers without support.
Here’s the rundown of what you should expect to happen after Title 42 ends.
Migrants entering the U.S. without papers will be presumed eligible for rapid deportation.
Under federal immigration law, unauthorized migrants entering the U.S. are subject to “expedited removal” – deportation without a hearing before an immigration judge. Unlike expulsion under Title 42 – which just meant getting physically sent off U.S. soil – deportation carries both escalating criminal penalties for repeat attempts to enter and consequences for future efforts to obtain legal status in the U.S. The stiffer penalties for expedited removal raise due process concerns. However, while the government didn’t allow people subjected to Title 42 to ask for asylum, people subject to expedited removal have the legal right to do so; the question is whether they will receive a meaningful opportunity to make their case to the government.
1000 appointments a day will be available for asylum seekers at ports of entry via the CBP One app.
CBP One is currently used to seek appointments for exemptions from Title 42. The demand is much greater than the actual number of slots available – resulting in “asylum Ticketmaster” for asylum seekers along the border, who have had to resort to repeat-clicker apps or even separating some family members from each other to get the quickly-booked-up appointments. With Title 42 ending, CBP One appointments, which are available 14 days in advance, will become the main way to seek asylum at ports of entry. (The U.S. government has maintained that it won’t be the only way for an asylum seeker to present themselves at a port but hasn’t clarified any alternatives.) The Biden administration has promised to increase the number of appointments available via CBP One to 1,000/day along the border – which is still far less than the number of people who will be seeking the chance to ask for asylum.
Hundreds of additional DHS employees have been deployed just to conduct screening interviews of asylum seekers.
DHS confirmed last week that in addition to the asylum officers who are normally tasked with conducting screening interviews (known as “credible fear interviews”) for asylum seekers, it has drafted an additional 500 other DHS employees for the job. These additional employees were previously trained on asylum screening, but were working on affirmative asylum applications, refugee screening, or other jobs elsewhere in DHS. It’s not clear how long DHS expects to keep the extra 500 detailed to border screenings, but the longer that it does, the more other immigration priorities (like resettling refugees and fixing the years-long backlog for USCIS asylum applications) are likely to suffer.
Single adults – but not families – will be held in Border Patrol custody and subjected to phone-booth asylum interviews.
The government has confirmed that it is returning to a Trump-administration practice of putting some asylum seekers through screening interviews while still in Border Patrol custody, instead of turning them over to U.S. Immigration and Customs Enforcement (ICE). Those asylum seekers will be held in CBP facilities for longer than they otherwise would be, while having less time to prepare for their interviews (and little if any access to legal assistance). Only some asylum seekers – and only single adults – will be subjected to phone-booth asylum screenings.
Who is held overtime in CBP custody to wait for a phone-booth interview and who is transferred to ICE will depend on the government’s prioritiesand matters of logistics (for example, asylum-seekers were subjected to the Trump-era equivalent of the program based on whether they spoke Spanish or, later, Portuguese, thanks to ease of finding interpreters), rather than the immediate needs of the asylum seekers or the merits of their claims.
Asylum seekers apprehended by Border Patrol will probably be subjected to a new regulation that will make it nearly impossible for many to qualify.
The Biden administration continues to claim that it will release a final version of the asylum regulation it proposed in March in time for the end of Title 42. The regulation would bar asylum to nearly everyone who enters the U.S. without papers between ports of entry, as long as they traveled through another country without seeking (and being denied) asylum there first. Essentially, this means that nearly everyone who doesn’t get a CBP One appointment – or keep trying indefinitely to get one – will risk being barred from asylum entirely.
It’s possible that the final text will look different from what the government initially published, in response to the thousands of comments the proposal received. But not having the final text yet means that the public, attorneys, and asylum seekers themselves don’t know what law they’ll be subject to when they can finally ask for asylum. Likewise, the government officials responsible for determining who is subject to the new bar will have little, if any, opportunity for training and preparation before they make decisions that could have life-or-death stakes.
Capacity will be augmented by 1,500 military personnel, but it will remain finite, and people – especially families – may be released without screening or court dates.
The U.S. government has worked to expand temporary holding capacity for arriving migrants. Additionally, in addition to the 500 DHS employees detailed to asylum screening, the Department of Defense announced Tuesday that 1,500 active-duty military personnel will be sent to the border to assist with administrative tasks like data entry until CBP can find contractors to fill those roles.
However, it is still entirely possible that more people will be apprehended than CBP has physical space to hold or personnel to process. This is especially plausible for families, since the Biden administration has promised it will not reopen large-scale family detention facilities – at least for now. If that happens, the government will likely continue to release asylum seekers, with a notice to appear in court or under Alternatives to Detention (ATD) programs and by asking them to check in with ICE when they reach their final destination.
These releases can strain border communities, especially if the federal government isn’t coordinating with local governments and nonprofits to ensure that people have support. They can also leave people in limbo, with no court date to make their asylum case.
Some migrants from Cuba, Venezuela, Nicaragua, and Haiti will be deported to Mexico instead of their home countries.
For the last several months, Mexico has allowed the U.S. to expel several thousand people a month from Cuba, Haiti, Nicaragua and Venezuela to Mexico under Title 42, in addition to Mexicans and people from the “Northern Triangle” (Guatemala, Honduras, and El Salvador).
Last week, DHS confirmed that Mexico would continue taking some of these migrants back as deportees. It’s not clear whether Guatemalans, Hondurans, and Salvadorans will be subject to third-country deportation – and whether the number of deportees Mexico will accept is different from the number of Title 42 expulsions.
Bear in mind that some of these things – such as releases of large groups of asylum-seekers – will be easily captured by media and highly visible to the American public. But others – such as the phone-booth interviews in CBP facilities, which are famously closed not only to the public but even to immigrants’ lawyers – will be much harder to monitor. It’s likely that the days after Title 42 ends will feature a lot of confusion and contradictory information as people on both sides of the border try to figure out what policies are in place and where. But as we’ve seen from prior border crackdowns, from family detention in 2014 to the Remain in Mexico policy in 2019 (and the beginning of Title 42 itself), even a quiet border isn’t necessarily a working border – it can mean that abuses of migrants’ rights have just been shoved out of sight.