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AILA Doc. No. 19032731 | Dated May 25, 2023
In recent years, the ability to apply for protection in the United States 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 United States 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.
Members Only: Talking Points for AILA Members on the End of Title 42
Take Action: Urge USCIS to Remove Barriers to Its Benefits and Services
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.
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.
What is Title 42?
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.
Prior Attempts to End Title 42 & Litigation History
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 was initially expected to make this decision in spring of 2023, and then re-calendared it for the fall after the Biden Administration decided to end the COVID-19 National Emergency, which in turn ends Title 42.
Title 42 ended at 11:59 pm (ET) on May 11, 2023. The Supreme Court “dismissed an attempt by Republican-led states” to maintain Title 42 a few days later.
Title 42 was always intended to be temporary – and never intended to be used for border management. In preparation for its expected end on May 11, 2023, The Biden Administration is taking many different approaches to mitigate an expected increase of migrants at the Southern border.
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 a separate program was created for Venezuela, Nicaragua, Haiti, and Cuba (CHNV). (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 Title 8 expedited removal.
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.
Since spring 2022, Governor Greg Abbott of Texas and Governor Doug Ducey of Arizona have been sending charter buses with migrants to Union Station in Washington, D.C. These buses arrive with little notice, usually early in the morning (between 1:00 and 3:00 am), and volunteers sometimes wait for buses that never arrive. Governor Abbott began busing migrants to New York City in early August, and he expanded this practice to include Chicago by the end of that month. In mid-September, he sent two buses to Vice President Kamala Harris’s residence in DC. Fox News was present to greet these arriving buses, while local volunteers report that they did not receive advance notice.
It is important to note that the migrants arriving by bus to all of these cities consented to the trip. Many of them take advantage of these politically motivated bus rides to save money and get closer to their destination. Some common themes we are hearing of among migrants arriving via bus to these cities include:
The local response varies from city to city, and each city has a different set of resources and capacity to support these migrants. After the basics of reception and shelter, one of the biggest concerns we are hearing from our local and state partners is legal support, including changing addresses, filing for humanitarian relief, and accessing employment authorization.
In what was described as a “political stunt,” Florida Governor Ron DeSantis of Florida sent two flights of 50 migrants to Martha’s Vineyard, Massachusetts on September 14, 2022. The small island community did not have advance notice of this but rose to the occasion to support the migrants before the state of Massachusetts moved the migrants to a military base on the mainland. AILA member Rachel Self eloquently summarized her observations in a press statement given in the aftermath. The flights to Martha’s Vineyard are notably different from the busing occurring in other cities for the following reasons:
Like the migrants arriving by bus, those in Martha’s Vineyard had false addresses listed on their documents. As of writing, there are no further updates on the legality of Gov. DeSantis’s actions.
The issue of erroneous addresses on migrant paperwork is an overlapping but distinct one from transporting migrants. Since spring 2022, nonprofits began receiving government paperwork (including Notices to Appear (NTAs) and calendar hearing notices) for migrants that were not their clients. Similarly, some migrants began appearing at nonprofits with NTAs that listed the nonprofit’s address. While this issue is prevalent across the country, many of the migrants being transported around the country are arriving with paperwork with a nonprofit address. With the end of Title 42, AILA is expecting this practice to continue and likely increase.
Immigration attorneys should incorporate screening for a nonprofit address on NTAs and hearing notices into their practice. While many nonprofits are actively working to resolve this issue for the migrants for whom they receive notices, it is possible that a future client of yours could have already missed a hearing date because of this issue. AILA members can read our practice alert on this issue.
AILA and CLINIC are developing a resource for future possible motions to reopen. If your organization has received erroneous immigration documents, please contribute to this resource here.
Related page: Featured Issue: Asylum and Credible Fear Interim Final Rule (enrollments are currently paused as USCIS focuses capacity elsewhere).
AILA is advocating to address the asylum work permit backlog, delays, and inefficiencies throughout the employment authorization (EAD) process.
Cite as AILA Doc. No. 19032731.
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