With Title 42 set to end, questions loom about the future of migrants and asylum
Updated December 9, 2022 at 7:47 AM ET
Just across the border from South Texas, hundreds of migrants are living in small, makeshift camps scattered around Reynosa, Mexico.
Many are hoping to apply for asylum in the U.S. but they're blocked, for now, by the pandemic border restrictions known as Title 42, which allows immigration authorities to quickly expel many migrants without allowing them to apply for asylum while in the U.S.
There's a lot of confusion in the camp about Title 42 and whether it's really ending or not on Dec. 21, as ordered by a federal judge.
"People know it ain't going to be easy for us," says Nicodemus Pierre-Louis, who is originally from Haiti. "We don't really know. We're just waiting to see what's going to happen."
Another Haitian, who identifies himself only by his first name, Kendis, says he's eager to cross the border as soon as Title 42 is lifted.
"I need asylum," he says in Spanish. "If I'm allowed to apply for asylum, I'm going. No problem."
There's some confusion on this side of the border, too. The federal judge who ordered the policy to come to a close ruled that the Title 42 is unlawful. The ruling was hailed as a victory by immigrant advocates, who have long argued that Title 42 was intended to block access to asylum protections under the pretense of protecting public health during the worst parts of the pandemic.
The Biden administration said this week that it will appeal that ruling, but will not seek to keep Title 42 in place while the case plays out. The appeal, instead, is about preserving the legal authority of the Centers for Disease Control and Prevention, the agency that originally instituted the policy, says an administration official who asked not to be named because they were not authorized to speak for this story.
With the restrictions set to lift in less than two weeks, federal and local officials are bracing for an influx of migrants who've been waiting in border communities from Reynosa to Tijuana. That looming deadline has also prompted Congress and the White House to float proposals to extend Title 42, or limit access to asylum in other ways. And immigrant advocates say they worry that the right to seek asylum is still in jeopardy.
Comparisons to Trump's asylum policies
In particular, advocates are concerned that the Biden administration is considering an asylum policy similar to one originally devised by the administration of former President Donald Trump, as reported by Axios and other outlets.
That was known as the transit ban. It would have denied asylum to migrants if they had already passed through other countries on the way to the U.S. without first seeking protection in those countries. It was eventually blocked in court.
"It's deeply disappointing that they could even be considering this policy," says Robyn Barnard, a lawyer with the non-profit Human Rights First during a call with reporters this week. "If the administration makes the mistake of going down this path, we will fight tooth and nail against it, again."
The White House disputes that the policies under discussion now would work the same way as Trump's transit ban. The Biden administration prefers to compare the proposals under consideration to a new program for Venezuelans that was announced in October.
In that case, the administration created a legal pathway for up to 24,000 Venezuelans, but only those who apply from outside the U.S. qualify. At the same time, the administration began turning away Venezuelans under Title 42 if they crossed the border illegally.
Asylum system under strain
Immigration hardliners have been trying for years to limit who can apply for asylum. They argue that many migrants are abusing the U.S. system because they know they'll be able to live and work in the country for years while waiting for their claims to be heard in immigration court.
"If the asylum system is not fixed, this won't end," said U.S. Sen. Rob Portman, a Republican from Ohio, during a congressional hearing earlier this month. "We've got a crisis. And if we don't fix this crisis at the border, we'll continue to see these same results."
That echoes the rhetoric of the Trump administration, which tried a broad range of policies to limit access to asylum.
The Biden administration has launched a new system aimed at deciding asylum claims more quickly, with asylum officers at the Department of Homeland Security hearing some cases initially instead of first sending them to overloaded immigration judges.
But that's still a relatively small pilot program, while the number of migrant apprehensions climbed to record levels last year, straining the resources of immigration authorities and border communities.
A possible extension of Title 42
U.S. Sens. Kyrsten Sinema, a (soon-to-be former) Democrat from Arizona, and Thom Tillis, a Republican from North Carolina, reportedly want to continue Title 42 restrictions temporarily as a part of a broader deal that would also dedicate more funds for border security and create a pathway to citizenship for young immigrants known as Dreamers.
Their proposal got a chilly reception from Senate Republicans, who want to see border apprehensions come down from their near-record highs before considering any reforms to the immigration system.
Meanwhile, immigrant advocates welcomed the idea of bipartisan negotiations, but not the extension of Title 42.
"If we just keep trying to extend Title 42, we're only putting a Band-Aid on what is something that just needs far greater attention," says Angela Kelley, a former Biden administration advisor who's now with the American Immigration Lawyers Association.
Many of the migrants coming to the border are fleeing failed states in Venezuela, Nicaragua, Cuba and Haiti, Kelley says. She wants to see the Biden administration open more legal pathways so that these migrants don't have to cross the border illegally, citing the new program for Venezuelans as an example.
"If you create legal pathways for people, people would much rather come with, you know, a visa than with a smuggler," Kelley says, "rather than just trying to build either metaphorical or actual walls to keep people out. That won't work."
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