Efforts to Restore Asylum at the Border Hobbled by the Courts and Congress

A scheduled end to Title 42 did not materialize; the new interim final rule on asylum and credible fear (“IFR”) went into effect; and both face challenges before the federal courts and Congress. Every spring and early summer, we see an uptick in border crossings, something exacerbated by Title 42’s repeat entries. Yet, as of this writing, Title 42 is no longer scheduled to end, and an administrative attempt at addressing the asylum backlogs at the border is off to a rocky start.

Title 42: No End in Sight

Since March 20, 2020, the use of “Title 42,” has decimated access to asylum at the Southern border of the United States. Title 42 is a provision of health law that allows the Director of the Center for Disease Control to prohibit the entry of individuals to the United States when the director believes “there is serious danger of the introduction of [a communicable] disease into the United States.” Because individuals expelled to nearby Mexico under Title 42 can re-enter, there has been a dramatic increase of encounters, with “1 in 3 apprehensions since Title 42 expulsions began have been of a person on at least their second attempt to cross the border.” It also runs counter to our asylum laws by preventing some individuals from applying for asylum at all.

The Biden administration attempted to end Title 42 on Monday, May 23rd. The Friday before its scheduled end date, a federal judge out of Louisiana issued a nation-wide injunction on the termination of the Title 42 program. The judge concluded that the Plaintiff states were likely to succeed in its argument that ending the use of Title 42 constituted “rulemaking” and required a notice and comment period.

As a result, Title 42 is unlikely to end any time soon. If the appeal is unsuccessful and the Biden administration decides to proceed with notice and comment rulemaking, this will take months. Between the usual comment period of 30-60 days, the time to review the comments, and the time to implement the rule. Not to mention the time at the beginning to draft and internally review the rule itself. An estimate from the American Immigration Council’s Aaron Reichlin-Melnick suggests Title 42 will remain in place well into 2023.

Beyond the courts, the termination of Title 42 still faces opposition in Congress, largely from Congressmembers in swing states. The prominent language circulating is S.4036 Public Health and Border Security Act of 2022  which would prevent Title 42 from being lifted until 60 days after the government formally ends the COVID-19 health emergency.  Formally ending the health emergency will be a slow moving process, because the nation needs to unbuild structures we currently rely on.

Tying a program that has gutted asylum law at the Southern border to a public health emergency that might never end fundamentally undermines the nation’s asylum laws and will compound the numbers we see at the border.

IFR on Asylum: In Effect, but the Future is Uncertain

The new interim rule on asylum and credible fear went into effect on May 31st as planned, but not without challenges. The IFR faces litigation brought by Plaintiff states in both Texas and Louisiana in two separate cases. While a preliminary injunction was not ruled on in either case before the rule could go into effect, we expect to see some movement in late June and early July in both courts.

In late May, a proposed disapproval resolution of the IFR under the Congressional Review Act (CRA) went before the Senate. The CRA authorizes Congress to overturn rules issued by a federal agency, and a clause stating that a subsequent rule “may not be issued in ‘substantially the same form’ as the disapproved rule.”  As much as there are  due process concerns with the IFR (read AILA/the Council’s joint comment here), the IFR is wide-sweeping and Congress overturning this rule could hamstring the Biden administration from issuing any regulations addressing asylum, border management, and the asylum backlog. The disapproval resolution failed in May, but we are expecting to see further Congressional attempts to use the CRA. .

In the meantime, the roll out of the IFR began as planned. USCIS issued a fact sheet on its implementation, laying out the narrow parameters of the individuals that will be initially processed under the IFR. Notably, the roll out will be slow. Only individuals “placed into expedited removal proceedings after May 31, 2022, are potentially subject to the new process.” Further narrowing the pool, only individuals from two detention facilities in Texas will be referred out (at the time of writing, DHS had not announced which facilities these were). DHS plans to refer approximately a few hundred individuals each month to USCIS for an asylum interview under this rule, and only for individuals who indicate an intention to reside in one of six cities: Boston, Los Angeles, Miami, New York, Newark, or San Francisco.

Like almost every spring, the past month has been a flurry of activity at the border and about the border in the Courts and on the Hill. With all the noise, it can be easy to lose sight of the fact that behind these numbers and headlines are people. People with fear who have a legal right to seek asylum in the United States and hope for a future where they are safe. People who currently face an uncertain future as an already troubled asylum system is bogged down by unnecessary challenges from every angle.


AILA members looking for more resources and information, there are a number of relevant sessions planned for the upcoming AILA Annual Conference in NYC June 15-18. We’d love to see you there or have you participate via the webcast!

Further resources:

Louisiana District Court Blocks CDC from Ending Title 42 Border Expulsions

Immigration Impact, Federal Judge Blocks Termination of Title 42: What You Need to Know

AILA and the Council Submit Comments on Credible Fear Screening and Asylum Processing

Fast Tracking Asylum at the Border will Undermine Due Process

Follow Litigation over the Asylum Processing Rule

AILA’s Asylum Online Course is LIVE

by Amy Grenier