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Featured Issue: Border Processing and Asylum

AILA Doc. No. 19032731 | Dated July 21, 2022

In recent years, the ability to apply for protection in the U.S. at the southern border has been severely restricted by a combination of policies, practices, and regulations. Together, they form a barrier to asylum and due process for migrants that is unfair, inhumane, and in violation of long-established U.S. and international refugee norms. We are witnessing unprecedented migration across the globe, including record numbers of death of migrants en route or at our border as attempts to control migration force migrants to take even more deadly routes.

This featured issue page provides updates, analyses, and other resources on these asylum and border policies along with AILA’s advocacy for the creation of a humane and fair border processing system for all individuals arriving at our southern border seeking safety and to reunite with awaiting family and communities.

AILA joined other organizations calling on the Biden Administration to end the Migrant Protection Protocols (MPP) following the Supreme Court decision in Biden v. Texas, urging the Administration to expedite this process and immediately cease the return of any individuals to Mexico under this policy, among other asks.

Current Issues

Summary of Current State of Play

Update as of July 19, 2022

On April 1, 2022, CDC released an order to terminate its Title 42 public health order, effective May 23, 2022. Read more about the history of Title 42. Just days before Title 42 was set to terminate, a court in Louisiana granted a preliminary injunction, halting the termination of the program until the Biden administration does notice and comment rulemaking. While the administration appealed the preliminary injunction, it has not yet begun notice and comment rulemaking.

Despite the injunction, there continues to be an ongoing push among some member of Congress to ensure Title 42 is maintained. Several bills have been introduced, as well as amendments to appropriations bills. AILA joined other civil society organizations to urge Congress to not Codify Title 42 border expulsions in these spending bills. If the current Title 42 program is codified, it will likely take much longer for this program to end than if the government is allowed to pursue notice and comment rulemaking. This makes it still very important to reach out to your representatives to encourage them to support Title 42’s recession.

You can take action today:

Take Action Now

The Biden administration’s new interim final rule, “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers” (asylum IFR) went into effect on May 31, 2022. DHS continues its limited rollout of this new process while this rule faces challenges in both the court and Congress. Read more about the asylum IFR, including opportunities to act by signing up for referral lists used by nonprofits.

In early July, the Supreme Court found in Biden v. Texas, that (1) the district court did not have the jurisdiction to issue an injunction stopping MPP because of INA §1252(f )(1); (2) that DHS has the discretionary authority to return an alien arriving on land to Mexico because the text of the statute says “may”; and (3) that the October 2021 memo was a valid agency action. Read more about MPP and this decision here.

In the meantime, the Biden Administration can end MPP under the October memo once the Supreme Court sends the certified judgement to the Fifth Circuit. This formal process usually takes about 28 days, although it may be expedited. AILA joined other organizations calling on the administration to expedite this process and immediately cease the return of any individuals to Mexico under the policy, among other asks.

As of July 19, 2022, the Biden Administration has not formally ended MPP and there has been no change on the ground related to MPP in the aftermath of the Biden decision.

Contents

  1. Solutions to the Humanitarian Needs at the Border
  2. Border Processing
    1. Title 42 Expulsions and Restrictions Based on COVID-19
    2. New Credible Fear Processing for Individuals in Expedited Removal
    3. Treatment of Children at the Border

Solutions to the Humanitarian Challenge at the Border

AILA is urging lawful, humanitarian-based solutions to the seasonal increase in migrants, in particular children, at the U.S. southern border. As the Biden administration rebuilds an asylum system that was gutted by the prior administration, the only sensible choice is to transform how we receive and screen people at the border.

Instead of deterrence and enforcement only approaches, we should welcome people with dignity in line with American values. We must extract ourselves from the counter-productive “crisis at the border” news cycle. Instead, America must lead the way in building a sustainable migration system that meets the demands of the modern world and current events.

AILA Policy Briefs and Recommendations

American Immigration Council Fact Sheets

  • A Guide to Title 42 Expulsions at the Border - March 29, 2021
    • The United States has long guaranteed the right to seek asylum to individuals who arrive at our southern border and ask for protection. But since March 20, 2020, that fundamental right has been largely suspended.
  • Community Support for Migrants Navigating the U.S. Immigration System - February 26, 2021
    • This fact sheet draws from original data gathered from hundreds of community organizations around the country and provides a snapshot of the extent of available services that help migrants navigate the complexities of the U.S. immigration system.
  • An Overview of U.S. Refugee Law and Policy - January 8, 2020
    • The United States has long been a global leader in the resettlement of refugees and the need for such leadership remains enormous.
  • The High Cost and Diminishing Returns of a Border Wall - September 6, 2019
    • The fact is that building a fortified and impenetrable wall between the United States and Mexico is unnecessary, complicated, ineffective, expensive, and would create a host of additional problems.

Press Release and Statements

Media

Reports

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Border Processing

Long-standing United States law says that any person who is physically present in the United States or who “arrives” at the border must be given an opportunity to seek asylum. Yet, harsh deterrence tactics and administrative policies, such as those described below, cause or exacerbate the denial of due process, separation of families, excessive detention, and imposition of severe punitive measures that should be halted.

Title 42 Expulsions and Restrictions Based on COVID-19

On March 20, 2020, the Centers for Disease Control’s (CDC) ushered in exclusions at the southern border due to the COVID-19 pandemic. The order was issued pursuant to CDC’s public health authority under Title 42 and allows DHS to expel anyone – without normal safeguards for those fleeing persecution – if there is a “serious danger of the introduction of [a communicable] disease into the United States.” It exempted large groups of people - including citizens, LPRs, and anyone with valid travel documents – but did apply to people seeking asylum in the United States. Title 42 led to the practice of expelling asylum seekers, including vulnerable individuals and family units, to danger. One court in Huisha, et. al. v. Mayorkas narrowly ruled that DHS cannot expel families without assessing whether they may be persecuted or tortured. Under the CBP Guidance issued in response to this case, it amounts to a “shout and sweat test,” requiring an affirmative statement from a family member that would be covered by Huisha that they have fear of returning, were previously harmed, or will be harmed. Nonverbal actions such as “hysterical, trembling, unusual behavior, incoherent speech patterns, self-inflicted harm, panic attacks, or unusual level of silence” may also qualify. Advocates are monitoring whether families were improperly subject to Title 42 when they should have been screened under Huisha, and you can report cases using this form.

On April 1, 2022, the CDC released an order to terminate its Title 42 public health order, effective May 23, 2022. Just days before Title 42 was set to terminate, a court in Louisiana granted a preliminary injunction, halting the termination of the program until the Biden administration does notice and comment rulemaking. While the administration appealed the preliminary injunction, it has not yet begun notice and comment rulemaking.

Despite the injunction, there continues to be an ongoing push among some member of Congress to ensure Title 42 is maintained. Several bills have been introduced, as well as amendments to appropriations bills. AILA joined other civil society organizations to urge Congress to not Codify Title 42 border expulsions in these spending bills. If the current Title 42 program is codified, it will likely take much longer for this program to end than if the government is allowed to pursue notice and comment rulemaking.

AILA Resources and Advocacy

Government Announcements and Information

Media

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Treatment of Children at the Border

AILA believes that all decisions regarding children, including unaccompanied children, must be based on what is in the best interest of the child. Using deterrence tools like intentionally separating children from their parents has no place in civil society. Family unity must always be a guiding principle when responding to children and every effort should be made to expeditiously process children from the border to awaiting sponsors in the U.S.

Government Announcements and Information

Media

Litigation

  • ACLU Class-Action Lawsuit Challenging the Trump Administration on Behalf of Unaccompanied Minors Facing Removal (PJES v. Pekoske) - Last Updated January 29, 2021

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    Cite as AILA Doc. No. 19032731.