Pressure mounts to end pandemic expulsions of migrants

Ukrainian refugees are showing up in Mexico and trying to cross the southern border into the United States, further complicating the Biden administration’s disjointed immigration policy. After reports that border officials turned away a 34-year-old mother who fled Ukraine with her children and flew to Mexico, U.S. Customs and Border Protection released a memo calling the war a “humanitarian crisis” and encouraging agents to exempt Ukrainians from the pandemic no-entry policy known as Title 42.

The move angered migrants from Mexico and Central America who have waited for months at the border for a chance to apply for asylum. Some advocates accused the Biden administration of racial bias. “The cases that we’ve seen denied for black and brown migrants are life-and-death cases,” Erika Pinheiro, litigation and policy director of Al Otro Lado, told CNN.

The tension underscores the need for the United States to reevaluate Title 42 and address the crisis at its southern border, where each month more than 150,000 people are either crossing illegally or showing up without documents at ports of entry, according to Customs and Border Protection. The Biden administration is also under pressure to end Title 42 due to legal challenges and declining COVID-19 cases. If Title 42 ends, the United States must prepare an already overburdened immigration system for an influx of asylum-seekers. A new Biden administration rule aimed at expediting asylum cases might be part of the solution.

Under the new asylum rule, published Tuesday in the Federal Register and scheduled to take effect May 31, U.S. Citizenship and Immigration Services (USCIS) asylum officers — not just immigration judges — will have the authority to decide asylum cases. The change aims to speed up asylum claims to ensure that “those who are eligible for asylum are granted relief quickly, and those who are not are promptly removed,” said Department of Homeland Security Secretary Alejandro Mayorkas in a statement.

The rule comes on the heels of the two-year anniversary of Title 42, which the U.S. Centers for Disease Control and Prevention invoked March 20, 2020, to prevent the spread of COVID-19. Under Title 42, USCIS has turned away more than 1.5 million asylum-seekers and migrants during the last two years without allowing them to file an application under U.S. asylum law.

Recent court decisions put Title 42 on shaky ground, and some news outlets reported Wednesday that the Biden administration has plans to end the policy by May 23. The American Civil Liberties Union challenged Title 42 with a class-action lawsuit to stop border officials from immediately expelling families. On March 4, the U.S. Court of Appeals for the District of Columbia Circuit ruled that officials can expel families only after giving them a chance to communicate a fear of persecution or torture. If the fear is determined legitimate, a family can file an asylum claim with an immigration court. Single adults have been turned away most frequently under the policy.

But what makes single adults more susceptible to COVID-19 than families? In the circuit court’s ruling, Trump appointee Judge Justin Walker questioned the public health rationale. “From a public-health perspective … it’s far from clear that the CDC’s order serves any purpose,” he wrote.

Matthew Soerens with World Relief agreed, saying Title 42 is “really being used to limit our obligations under our own laws to give people asylum.”

The administration relies on the policy to control the ever-growing influx of asylum-seekers, said Theresa Cardinal Brown, an immigration expert with the Bipartisan Policy Center: “I firmly believe they have kept Title 42 for operational benefits,” she said.

On the afternoon of March 4 — only hours after the D.C. Circuit Court of Appeals decision — a U.S. District Court judge ruled in favor of a request by the state of Texas that the Biden administration continue to expel unaccompanied migrant children. Judge Mark Pittman said that an earlier order to end such expulsions had caused financial harm to the state of Texas. In response, the CDC issued a 21-page-order explaining its basis for not applying Title 42 to minors who arrive alone at the border. CDC Director Rochelle Walensky added that the agency would reevaluate the public health basis for Title 42 by March 30.

Danilo Zak, a policy and advocacy manager with the National Immigration Forum, pointed out that the administration is not fully prepared for an estimated influx of 170,000 migrants if the policy is lifted. In a March 24 letter, Democratic Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia urged the administration to keep Title 42 until other policy options are in place.

The new asylum rule may be a first step. “It has the potential to be part of the solution,” Zak said. If a migrant is not immediately expelled under Title 42, he or she is subject to expedited removal —  the process by which the U.S. Customs and Border Protection officers can remove an undocumented individual without an immigration court hearing — unless the person can pass a screening to prove credible fear of persecution or torture. Then, typically an immigration judge decides the asylum case in immigration court. But this process can take years due to court backlogs. Currently, over 671,000 asylum cases are pending. Under the new rule, asylum officers will interview migrants who pass their credible fear screening and USCIS will decide whether to grant asylum. Migrants refused asylum will be referred to an immigration judge for a removal proceeding. The rule change aims to shorten the process to 90 days.

But the rule faces practical challenges. It will take effect in phases beginning with a small number of individuals until the USCIS asylum division expands its capacity to handle the new cases. It will require several hundred more asylum officers to decide cases. Since immigration courts will have to follow stricter timelines, more judges and attorneys will also be needed.

Zak noted there is some concern that migrants may not receive due process under the rapid timeline since migrants may not be able to find lawyers within the 90-day period. “The new rule has potential to create a more humane and orderly system,” he said, “but the devil’s in the details.”