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Featured Issue: Border Processing and Asylum

AILA Doc. No. 19032731 | Dated April 22, 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.

Summary of Current State of Play

Update as of April 21, 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.

In response, some members of Congress are pressuring for a vote on legislation that would maintain Title 42. This stance is currently preventing the passage of a $10 billion coronavirus relief bill in early April. There is an ongoing push among some members of Congress to ensure Title 42 stays until a government plan is in place. The American Immigration Council summarized the government’s plan for ending Title 42.

In addition to an amendment to the COVID relief bill, several bills were introduced that would extend Title 42. Senator Marco Rubio (R-FL) introduced a Republican-led bill on April 6, 2022, that would codify Title 42 until February 1, 2025. Senator James Lankford (R-OK) introduced the bipartisan Public Health and Border Security Act of 2022, which would maintain Title 42 until the Surgeon General ends the public health emergency. This bill is co-sponsored by Senators Kyrsten Sinema (D-AZ), Mark Kelly (D-AZ), Joe Manchin (D-WV), Jon Tester (D-MT), and Margaret Hassan (D-NH). There is a related bill in the House sponsored by Rep. Jared Golden (D-ME).

You can reach out to your representatives to encourage Congress to support Title 42’s recission and take action here:

Take Action Now

Additionally, 21 states, led by Louisiana, Arizona, and Missouri, are suing the Biden administration under the Administrative Procedures Act (APA), arguing that the administration did not follow a notice and comment period when it ended Title 42. These states are seeking a preliminary injunction to prevent the Biden administration from ending Title 42 until it can be amended or rescinded in accordance with the APA.

Contents

  1. Solutions to the Humanitarian Needs at the Border
  2. Border Processing
    1. Title 42 Expulsions and Restrictions Based on COVID-19
    2. Treatment of Children at the Border
  3. Efforts to Undermine Asylum Protection
    1. Asylum Bans and Metering (“Queue Management”)

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.

On April 1, 2022, CDC released an order to terminate its Title 42 public health order, effective May 23, 2022. In response, some members of Congress are pressuring for a vote on legislation that would maintain Title 42. This stance is currently preventing the passage of a $10 billion coronavirus relief bill in early April. There is an ongoing push among some members of Congress to ensure Title 42 stays until a government plan is in place. The American Immigration Council summarized the government’s plan for ending Title 42.

In addition to an amendment to the COVID relief bill, several bills were introduced that would extend Title 42. Senator Marco Rubio (R-FL) introduced a Republican-led bill on April 6, 2022, that would codify Title 42 until February 1, 2025. Senator James Lankford (R-OK) introduced the bipartisan Public Health and Border Security Act of 2022, which would maintain Title 42 until the Surgeon General ends the public health emergency. This bill is co-sponsored by Senators Kyrsten Sinema (D-AZ), Mark Kelly (D-AZ), Joe Manchin (D-WV), Jon Tester (D-MT), and Margaret Hassan (D-NH). There is a related bill in the House sponsored by Rep. Jared Golden (D-ME).

Additionally, 21 states, led by Louisiana, Arizona, and Missouri, are suing the Biden administration under the Administrative Procedures Act (APA), arguing that the administration did not follow a notice and comment period when it ended Title 42.

AILA Resources and Advocacy

Litigation

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