Featured Issue: Border Processing and Asylum

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 around the globe, including record numbers of fatalities 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 and analyses of U.S. 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 families and communities.

Summary of Current State of Play

Update as of January 5, 2023

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

Media

Reports

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Border Processing

Long-standing U.S. 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

Since March 20, 2020, Title 42 has been in place at the southern border. Title 42 is issued under the Centers for Disease Control’s (CDC)’s public health authority and is not intended to be used as a border management tool. Title 42 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.”

While it exempts large groups of people - including citizens, LPRs, and anyone with valid travel documents – it does 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 in Louisiana v. CDC, 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 begun notice and comment rulemaking.

In the ongoing Huisha v. Mayorkas case, the district court ruled that Title 42 itself violated the APA, making Title 42 itself invalid. The federal government appealed, but did not seek a stay, and Title 42 was scheduled to end on December 21, 2022. Nineteen GOP states attempted to intervene, and was granted a stay while SCOTUS determines whether they have the right to intervene. SCOTUS is expected to make this decision later in spring of 2023.

There continues to be an ongoing push among some member of Congress to ensure Title 42 in its current form 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.

AILA Resources and Advocacy

Government Announcements and Information

Media

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Parole Programs for Certain Nationalities

The Biden Administration has increasingly used its parole power to alleviate migrant displacement around the world by creating specific parole programs for certain nationalities. This began with Uniting for Ukraine (U4U), and was later expanded to Venezuela, Nicaragua, Haiti, and Cuba. (The Afghanistan programs are distinctly different from these parole programs and are covered in more detail in our “Find Resources for Assisting Afghan Clients.”)

The parole programs for Venezuela, Nicaragua, Haiti, and Cuban all offer a legal pathway for a migrant from these countries to come to the United States if they meet certain parameters, including having a valid passport and a contact in the United States willing to sponsor them as a “supporter.” In exchange for this program, Title 42 will be expanded to apply to these nationalities. When Title 42 ends, the U.S. will continue to expel asylum seekers from these countries under expedited removal.

The Venezuelan program, announced in October 2022 with a cap of 25,000, has approved approximately 16,000 Venezuelans as of early 2023, with some attorneys reporting delays. On January 5, 2023, the Biden administration removed the cap and replaced it with a monthly limit of 30,000 travel authorizations spread across national of all four countries.

There are some distinct differences between U4U and the later programs. Notably, U4U allowed for dual nationalities to apply, did not have a cap, and did not expand Title 42 to include Ukrainians.

Resources

Government Resources

Press Releases

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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

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Cite as AILA Doc. No. 19032731.