Title 42 Has Expired: What’s Next for U.S. Immigration?

Immigration title 42 flag with dome of the Capitol Photo Source: Adobe Stock Image

Last week, the Trump-era immigration policy known as Title 42 expired, potentially opening the door to a new wave of immigration to the United States. The Biden administration has worked to impose new policies aimed at easing the burden on the immigration system, measures which have provoked criticism on both sides of the political aisle.

As used today, “Title 42” refers primarily to 42 U.S. Code § 265, a law that gives the federal government the power to halt immigration to prevent the spread of “communicable disease.” The Trump administration used the relatively obscure Title 42 to effectively impose a blanket ban on asylum in light of the COVID-19 pandemic. Asylum-seekers were turned away at the border or immediately expelled (albeit not deported) to Mexico without so much as a hearing. The former White House claimed the measure was necessary to prevent the spread of the novel coronavirus, although officials from the Centers for Disease Control and Prevention disapproved of the policy.

The asylum ban expired last week, which would have restored the asylum process to pre-pandemic protocols. Much to the chagrin of immigration advocates, the Biden administration has elected to enact its own restrictions on asylum in order to preemptively curb a prophesied flood of migrants at the border.

The new immigration rules allow for fast-tracked deportation, without a hearing, for any migrants found inside the U.S. who do not claim asylum, and raise the bar significantly for those who do. Any migrant who had to pass through another country on their way to the U.S. border must prove that they already sought asylum and were rejected along the way. In effect, the vast majority of non-Mexican asylum seekers will be summarily rejected. There’s a limited exception for asylum-seekers who can prove “exceptionally compelling circumstances,” such as a medical emergency.

The policy also requires migrants to make an appointment at the border before entering the United States to apply for asylum. Historically, asylum-seekers could enter the country first, in order to avoid persecution and violence, and then ask for asylum. Now, anyone who enters the country illegally will be presumed ineligible for asylum and face a higher burden to stay.

Asylum seekers found to have entered the U.S. illegally who cannot prove they sought asylum elsewhere first will not only be expelled; they will be officially deported. Deportation carries additional consequences, including an effective ban on re-entry to the U.S. for five years and possible criminal prosecution for illegal reentry.

The Biden administration has enacted some policies to make the process easier for migrants. The administration, in tandem with Canada and Spain, recently announced plans to open processing centers in several Latin American countries, allowing migrants to request refugee or asylum status before crossing all the way to the U.S. Migrants can seek asylum in any of the participating countries. The first processing centers will open in Colombia and Guatemala, with an unspecified number of additional offices to come.

According to reports from the Associated Press, there will also be special rules for families who cross the border, as opposed to adults traveling singly. Families who cross the border illegally will be subject to nighttime curfews, rather than detention, pending an initial asylum screening. The head of the household will be fitted with an ankle monitoring bracelet. The government will aim to expedite the process and make a determination within 30 days as to whether a given family will be allowed to stay. Families that do not appear for their screening interviews will be detained and deported.

Christopher Hazlehurst
Christopher Hazlehurst
Christopher Hazlehurst is a graduate of Columbia Law School, where he also served as Editor of the Columbia Law Review. Throughout his legal career, he has navigated a diverse array of intricate commercial litigation and investigations involving white-collar crime and regulatory issues. Simultaneously, he maintains a strong commitment to public interest cases nationwide. Presently, he holds a license to practice law in California.
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