Restrictions on Asylum Seekers Expected to Continue under Biden Administration
The end of Title 42 means a return to a system where border enforcement is governed by Title 8 of the U.S. Code.
By Adam Cox, J.D.
Robert A. Kindler Professor of Law
New York University
By Cristina Rodríguez, J.D.
Leighton Homer Surbeck Professor of Law and Counselor to the Dean
Last night at midnight, the federal COVID-19 public health emergency declared in February 2020 officially ended. A host of emergency measures ended with it, including the notorious Title 42 border policy. Formally issued by the Centers for Disease Control and Prevention early in the pandemic and based on a law in Title 42 of the U.S. Code, that policy has authorized immigration officials to summarily expel migrants arriving at points of entry and across the U.S. southern border. Initiated by the Trump administration, this supposed public-health measure effectively became a border-control device, used to manage record numbers of migrants attempting to enter the United States, primarily from Central and South America. While its proponents have touted Title 42 as a means to manage historic pressures on the border and the states along it, its critics have condemned it as eviscerating U.S. asylum law, which provides protection to those fleeing persecution based on certain characteristics. According to the critique, the Title 42 order permitted border agents to turn away desperate migrants fleeing violence and humanitarian calamity without any consideration of the asylum claims the law entitled them to make.
The end of the Title 42 order will not make the underlying migration dynamics disappear. Well aware of these persistent humanitarian and political dilemmas, the Biden administration has announced a series of initiatives that aim to stave off a predicted post-Title 42 surge in arrivals, while also offering a long-term vision for the future of migration across the hemisphere–a vision based on organized processes rather than crisis management.
These initiatives – which combine new restrictions on access to asylum at the border with expanded and structured routes to humanitarian protection for the nationals of select countries – would transform the reach and purpose of asylum law. In so doing, the Biden administration may well leave many vulnerable people without any avenue of protection. But it may also be reimagining asylum law and humanitarian protection to respond to challenges that bear little relationship to the concerns that animated Congress’s passage of the Refugee Act more than forty years ago. The administration may also be trying to avoid the extreme political pressures generated by vivid media images of an “overrun” border–pressures that could undo the U.S. commitment to asylum and humanitarian protection altogether.
If we put the new announcements together with a number of other changes initiated by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) over the last two years, we begin to see how President Joe Biden and his administration are following in the long tradition of presidential control over immigration law to shape contemporary policy, with Congress largely missing from action. It remains too soon to judge the extent to which these changes will lead the U.S. to shirk its legal obligations, the core of which is to refrain from returning individuals to persecution or torture (the obligation of non-refoulement). But taken together, the changes do seem likely to redefine the who of refugee protection – from the desperate migrant fleeing imminent catastrophe without the ability to plan or seek protection from home, to the would-be migrant with resources, safety, and time to apply for resettlement from abroad, through processes whose details we will only fully grasp as the administration and its international partners bring them into being.
Border Policy, Starting Today
The end of Title 42 means a return to a system where border enforcement is governed by Title 8 of the U.S. Code where federal immigration law is codified, rather than by public health authorities. This shift would have two principal effects. First, it would prohibit the government from expelling arriving immigrants without an opportunity to request asylum – replacing a fast and inexpensive border enforcement policy with a much slower one that requires far more money, personnel, and infrastructure. Second, returning to Title 8 enforcement would increase the consequences for migrants who are expelled after arriving. Title 42 expulsions carried literally no legal consequences; noncitizens could and did attempt repeated entries until they were successful. Under Title 8, however, noncitizens ordered removed at the border – even those who seek admission at a port-of-entry – are barred from re-entering the United States for at least five years. Moreover, they face stiff criminal penalties if they try to re-enter illegally after being ordered removed.
The Biden administration has been touting the return of these penalties, which officials hope will deter some migrants from making the journey to the southern border. But the administration also has made clear that it doesn’t want anything like a return to the pre-pandemic system of screening migrants for asylum upon their arrival. Far more important than the termination of the Title 42 policy, then, is the administration’s wholesale creation of a new system of humanitarian protection for migrants from Central and South America.
It is easy to miss that the administration is seeking to invent what looks like a new system, because its policies consist of complicated interlocking parts that have been rolled out not only in recent months, but also over the last two years.
The “Transit Ban” Rule
Let’s start with the piece of the strategy that seems to resurrect one of the Trump administration’s efforts to limit asylum – the so-called “circumvention of lawful pathways” rule, sometimes referred to as the “transit ban.” This policy, which just went into effect, makes arriving migrants presumptively ineligible for asylum if they didn’t first apply for protection in a country through which they passed on their way to the United States. The rule contains three exceptions: for those who used a new phone app called CBP One to schedule their asylum appointment before arriving at the border; for those who applied for and received parole before arriving at the border (including through a series of new programs the administration has launched, as described in more detail below); and for those who arrive at the border in a medical emergency, facing an imminent and extreme threat to life or safety, or having survived a severe form of human trafficking.
Many have argued that the transit ban is a terrible (and even illegal) policy because very few, if any, of the countries through which migrants pass in Central America have functioning systems of humanitarian protection. This seems plausible. But the policy would arguably be irrational even if those other systems worked well. First, if the administration truly believed that migrants should seek protection in the countries they first enter, why would it make an exception for those who use a phone app to schedule their asylum screening appointments? Second, under the current rule, a noncitizen is exempt from the transit ban only if she was actually denied asylum by a transit country. That highlights the perplexing nature of the ban: if the U.S. government truly believes that transit countries have legitimate asylum screening systems, then one might think that an asylum denial from a transit country should create (rather than eliminate) a presumption against a grant by the United States.
While these features of the rule suggest that critics may be right to question its reasonableness, in the end the ban may be more misdirection than actual policy. Unless the transit ban’s emergency exception is widely used, which remains to be seen, the policy’s main effect may simply be to channel migrants through the other protection policies that the Biden administration has recently created. Indeed, the administration’s new asylum policy may in practice be close to the following rule:
No one is eligible for humanitarian protection unless they either: (1) apply through an in-country parole process; (2) use our CBP One process to schedule an asylum interview at a port of entry.
This reality highlights the importance of understanding the administration’s new parole programs and the policy embedded in the CBP One application process.
The parole power has been part of the Immigration and Nationality Act since it was enacted in 1952 and today permits the Secretary of Homeland Security to allow migrants into the United States on a “case-by-case basis” for “urgent humanitarian reasons” or “significant public benefit.” Parole is discretionary and therefore does not confer a secure status, but it does permit beneficiaries to apply for work authorization and receive a social security number. From the moment the parole power was added to the U.S. Code, presidential administrations have used it to permit tens of thousands of would-be migrants in peril to come to the United States, many of whom Congress later gave permission to remain permanently: Hungarians fleeing Soviet oppression in the 1950s; Cubans fleeing Castro in the 1960s and again in the 1990s; Vietnamese fleeing war; Haitians, Nicaraguans, and other Central Americans fleeing the violence of the 1980s and over the last decades. The Biden administration has been no different. Building on the parole power’s long history as an instrument of immigration and refugee policy, the administration had already used parole to authorize the entry of more than 77,000 Afghans after the withdrawal of U.S. troops and more than 100,000 Ukrainians as part of its Uniting for Ukraine policy.
In recent months, the Biden administration has announced a series of parole initiatives for nations that, of late, have accounted for a large portion of asylum applicants arriving at the southern border. In October 2022, the administration launched a parole program for Venezuelans, and this January it rolled out another program for Cubans, Haitians, and Nicaraguans. In its most recent announcement, the administration has pledged to continue already existing parole programs and launch a family reunification process for nationals from El Salvador, Guatemala, Honduras, and Colombia. It also has declared the opening of processing centers in Colombia and Guatemala, perhaps with more to come, to encourage migrants to apply for parole or other forms of admission to the United States from more distant locations, before making the perilous journey over land to the southern border. Combined, these policies have the potential to shift hundreds of thousands of annual applications for entry away from that border.
CBP One and the New Asylum Queue
For those who cannot or do not use in-country processing, the other option available to migrants seeking protection is to use Customs and Border Protection (CBP)’s app to schedule an asylum interview at a port of entry. How precisely this will work remains to be determined, and reports from the border in recent months have documented numerous (to-be-expected) glitches and frustrations with the technology’s functionality. But according to changes announced last Friday, it appears that CBP One has become a numerically limited and opaque queuing system. Migrants can register in the app well in advance of requesting an interview, and then each day CBP will run a “lottery” to select those who will receive interview slots – roughly 1,000 per day now, though CBP has promised to increase capacity. CBP also has said that, in awarding interview slots, it will prioritize those who have been waiting longer (presumably measured by date of registration in the app).
Like the asylum officer rule that the administration announced last year – a rule that would have asylum officers in DHS rather than immigration judges in DOJ consider initial applications for protection – this turn to technology reflects a systems-level effort to impose order and expedition on a cumbersome, inconsistent, and under-resourced screening process that has had enormous humanitarian, logistical, and political costs. Yet the CBP One app is about more than logistics. The technology also embeds a policy of numerically limiting access to the asylum process in the United States. Plenty of previous policies – from the Haitian interdiction policies at sea begun by the Reagan administration to the Obama and Trump administrations’ “metering” policies at the land border – have taken similar tacks. But the CBP One app formalizes this quota in the technology’s operation.
The end of Title 42 thus doesn’t mean a return to the old system where arriving migrants apply for asylum at ports of entry. Instead, the Biden administration is attempting to end that system, replacing it with processes that funnel the vast majority of migrants into either in-country processing or the CBP One app.
What does this mean for humanitarian protection?
At least two big implications follow. First, the system looks more like the numerically limited, traditional admissions model than a system of access for anyone who can meet the eligibility requirements for asylum. The parole programs will themselves be numerically limited on an annual basis, most of them explicitly so. And again, the CBP One app process, because it creates a queue, will amount to a de facto numerical limit, though this quota will ultimately depend on resource allocation decisions that will dictate the number of interviews the government will make available over time.
Second, and perhaps more important, the new system effectively changes who receives protection. The expansion of parole programs, as well as in-country processing, means that the system will prefer people because of their country of origin, their family ties in the United States, and their access to potential sponsors, making it a complement and analogue to the overseas refugee resettlement program that the government is still struggling to revive after the Trump administration eviscerated it.
And even more potentially significant still, by moving away from screening asylum seekers upon arrival toward a system of in-country processing and remote queuing through CBP One, the system is likely to favor those who live with the modicum of safety that enables them to apply for protection while still in their home country, or who can afford phone access and manage to wait however long is required for an interview slot. The latter category may be large and encompass a substantial percentage of those who have been arriving at the border in recent years. But if so, then it’s not clear that the government will have solved the problem of migrants waiting for their interviews in Mexico in precarious and unsafe conditions, straining relations with Mexico and generating images of an unmanageable border.
If the Biden administration’s strategies for managing migration seem muddled or contradictory, it is arguably because the government must advance too many objectives and respond to too many constituencies at once. There may be far more people in the world who warrant protection from persecution, war, violence, and state and economic collapse than the United States is willing to take in, even if officials within the administration would like to significantly expand the reach of the humanitarian and asylum systems. But it’s also the case that the easily exploited images of an overrun border undermine whatever political will exists within either political party, or the public at large, to resettle even the most sympathetic migrants and refugees. The legal concept of the refugee – the figure who under existing law is actually eligible for asylum – is also a very poor vehicle for managing the various movements of people the government must confront. An asylum seeker must establish a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group, and it is likely that only a small percentage of people appearing at the border would actually satisfy even a generous interpretation of this standard, or the terms of the Convention against Torture that are also part of U.S. law.
The Biden policies underscore that the justification and need for humanitarian protection have eclipsed the legal and bureaucratic limits of the existing asylum system. The problem in need of solution is not only the government’s potential failure to abide by existing asylum law in one way or another, but also that the law itself is outmoded as a means of addressing the humanitarian and security concerns of our hemisphere. In time-honored fashion, this administration is grappling with how to use the considerable authorities it has at its disposal to update the architecture the United States has to respond to today’s world.
The Questions Time Will Answer
The policy shifts now occurring raise many new questions: how meaningful and effective will the Biden-era transformation of humanitarian protection be? Will it result in wider-spread protection and resettlement that obviates most potential claimants’ need to brave the considerable dangers that accompany the land journey through the hemisphere to the Southern border? Will the new system, at the same time, result in the most vulnerable people, whose safety depends on fleeing without warning or preparation, being left out of the system altogether?
If well executed, the new parole and in-country processing systems could significantly expand the numbers of migrants and refugees fleeing dislocation who resettle in the United States, including for reasons not captured by the existing, narrow basis for asylum. And efforts to build bureaucratic capacity to process applicants for traditional asylum quickly and without having to rely on large-scale detention or release into the United States could still honor the nation’s commitment to non-refoulement in a politically and operationally sustainable fashion. But these are all big “ifs.”
Whatever the ultimate answers to these questions, humanitarian protection is clearly not at its end. Rather, it is becoming instead a suite of policies that augment and even replace the paradigmatic image – of the individual fleeing targeted persecution by a government or non-state actor – with a system focused on managing large-scale flows of people searching for sustainable lives beyond nations that struggle to provide them.
Originally published by the Just Security, 05.12.2023, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.