Biden’s border rules

Humanitarian worker Sami DiPasquale believes he knows why the number of migrants crossing the southern U.S. border plummeted after May 11: It’s because the new border rules are less ­forgiving than the old ones.

May 11 marked the expiration of Title 42, the pandemic-era immigrant expulsion policy. Just two days earlier, border officials had tallied 10,600 crossings—a ­single-day record high—and many humanitarian leaders expected the surge to increase further. Instead, in the first days after Title 42’s demise, crossings dropped 50 percent.

Although Title 42 allowed authorities to quickly expel border crossers, such migrants were able to cross into the United States again without repercussions. With the law now reverting to policies laid out in U.S. Code Title 8, however, deported migrants are banned from reentering the country for five years and subject to criminal penalties if they cross illegally.

“News spread enough to where people realized that,” said DiPasquale, whose organization Abara provides financial and practical support to shelters in Juárez, Mexico, and El Paso, Texas. “[They] were trying to make it before the change.”

Law enforcement and shelters along the 1,951-mile border remain braced for post–Title 42 chaos even as the Biden administration implements new rules meant to stem a flood of illegal immigration that reached a record 2.76 million crossings last year. Still, migrants who reach the United States in hopes of claiming asylum remain in limbo amid confusion over an ever-changing immigration system and Congress’ unwillingness to hammer out long-term solutions.

Under Title 8, immigrants who cross illegally and don’t claim asylum will enter a fast track deportation process called “expedited removal.” Those who ask for asylum, meanwhile, must pass a rigorous initial interview.

But the Biden administration’s new Circumvention of Lawful Pathways rule makes it difficult to qualify for this screening. The rule presumes migrants who cross illegally are ineligible for asylum unless they were previously denied protection in a country along the way or are in imminent danger.

A coalition of advocacy groups challenged the rule in the U.S. District Court for the Northern District of California on May 11. They argued it violates vulnerable people’s right to make asylum claims anywhere on U.S. soil, as outlined in existing immigration law.

Asylum-seekers can still make appointments using the CBP One app, recently expanded to allow up to 1,000 people per day to cross at official ports of entry. But the app doesn’t always work smoothly and appointments fill up almost instantly. “It’s glitchy, and not really all that effective,” said Isabel Soto, policy director for the LIBRE Initiative.

The federal government does not have enough asylum officers to do asylum interviews at the ports or enough detention space to hold asylum-seekers. Some could be released into the country with instructions to report back to an immigration office in 60 days, although a lawsuit is challenging that policy as well.

Migration Policy Institute senior fellow Muzaffar Chishti noted that due to backlogs, some immigrants may not appear in court for years. That reality sends a signal that “you should come to the port and try your luck,” he said.

Long-term solutions require Congress to act. Two recently proposed pieces of legislation are unlikely to get very far. House Republicans passed the Secure the Border Act of 2023, which would resume construction on Trump’s border wall and boost border personnel and resources. It would also ban the use of CBP One for asylum appointments and require immigration officials to hold asylum-seekers in detention while their cases are heard.

The bill is expected to be dead on arrival in the Democrat-controlled Senate, and President Joe Biden has pledged to veto it. Soto says Democrats need to come to the table to “make an earnest effort to get something doable and effective passed.”

On May 4, a bipartisan group of senators introduced a measure that would essentially extend Title 42 for two more years. Monica Weisberg-Stewart, who lives in McAllen, Texas, and chairs the Texas Border Coalition’s Immigration and Border Security Committee, said the act is merely a band-aid on a broken system.

“Our laws are antiquated,” Weisberg-Stewart said. She argues that Congress should pardon illegal immigrants brought to the United States as children, fix misuses of the asylum system, and address labor shortages with new visas and guest worker programs.

Until Congress acts, ministries meeting physical and spiritual needs at the border are preparing for a possible influx. At the El Paso Migrant Center, run by the El Paso Baptist Association, immigrants wearing the same clothes for several days get a chance to shower. They connect to free Wi-Fi and let their families know they’re OK.

Yet for those still seeking U.S. asylum, misinformation runs rampant. They often get inaccurate news of policy changes from social media or smugglers.

“There’s broad confusion,” said DiPasquale. “People just aren’t sure what they’re supposed to be doing.”