Photo Credit: https://www.aljazeera.com/gallery/2023/5/14/title-42-ends-asylum-rules-change-at-tijuana-san-diego-border
Authored By: Ohtra Awad
May 17, 2023
For many years, the United States has acted as a symbol of new beginnings. A place where anyone can become someone, build a legacy, or live in peace away from the terrors or ruins of their home country. Coined as the American dream, the U.S. has acted as a place of refuge since its founding. The first newcomers to the Americas were those seeking religious freedom, attempting to escape British rule. These American pioneers formed the first colonies with the promise of treating everyone equally and laying the framework for what would eventually become fundamental freedoms for all.
With the expiration of Title 42, the question of whether the American dream still exists begs attention. The Trump Administration introduced the enactment of Title 42 to deter the spread of Covid-19.[i] Title 42 granted the director of the Centers for Disease Control and Prevention (CDC) the ability to block noncitizens from entering the U.S. for public health purposes.[ii] From its enactment in 2020, Title 42 was used more than 2.8 million times to immediately expel migrants to their home country without allowing them to seek asylum.[iii]
Although in place for over three years, Title 42 did not go unchallenged. As seen in Huisha-Huisha v. Mayorkas, a class of noncitizens involving a group of asylum-seeking families brought an action against the Secretary of Homeland Security, alleging violations of several acts, including the Administrative Procedure Act (APA) and the Public Health Service Act which arose from the Title 42 policy that “prohibited introduction into [the] United States of certain noncitizens to prevent [the] spread of Covid-19.”[iv] Here, the court strayed away from the Title 42 policy and decided that memos issued by the CDC introducing certain persons into the U.S. would be suspended.[v] Furthermore, the court decided Title 42 to be “arbitrary and capricious,” which prevented Defendants from applying the Title 42 policy to plaintiff class members.[vi]
As Title 42 expired Thursday, May 11, 2023, the U.S. braces itself for a new era of immigration policies. Set forth by the Biden Administration, the new set of guidelines calls for a harsher crackdown on illegal immigration while providing a new legal pathway for migrants to cross the border more efficiently.[vii] The expiration is anticipated to cause a surge of immigration at the border between Texas and Mexico, roughly 10,000 migrants a day are expected to be crossing the southern border.[viii]
However, the day prior to the expiration of Title 42, President Biden acknowledged that a new rule would be introduced. The administration introduced a new law that has the potential to limit asylum dramatically.[ix] Due to the expiration of Title 42, those that do not use available lawful pathways to enter the United States will face more significant repercussions. Those who arrive at the border without using lawful avenues will be presumed ineligible for asylum, whereas under Title 42, immigration officials were able to quickly turn away migrants at the southern border.[x]
The expiration of Title 42 means that the Biden administration will revert to Title 8 when deciding whether migrants have a lawful reason to seek asylum in the United States.[xi] Title 8 legislation has been active throughout the usage of Title 42; however, moving forward migrants will now only be subjected to regulations under Title 8. The most significant difference between the two pieces of legislation is that Title 8 typically allows more time for migrants to submit asylum claims than they were granted under Title 42. [xii]
Even though Title 8 will be restored with the expiration of Title 42, many urge Congress to introduce new legislation to supplement Title 8.[xiii] Title 8’s deportation consequences, along with the limited legal pathways to parole some migrants into the U.S. from abroad, has been scrutinized by Biden’s Homeland Security Secretary Alejandro Mayorkas.[xiv] Mayorkas claims that the state of the U.S. immigration lacks vital resources such as personnel, facilities, and transportation.[xv] Mayorkas has anticipated the surge in immigration for approximately two years, which led him to release the DHS Plan for Southwest Border Security and Preparedness in April 2022, which outlined a six-pillar plan to manage an increase in immigration once Title 42 expired.[xvi] The plan was later updated in preparation for Title 42’s expiration.
In addition, the Department of Justice and Homeland Security released a rule on May 10, 2023, implementing an asylum “transit ban” rule.[xvii] The transit ban penalizes those that have entered the U.S. irregularly to fail to apply for protection in other nations they cross through on their way to the U.S.[xviii] In essence, the transit ban would apply to all non-Mexican migrants, except non-accompanied minors, who had not been pre-approved under one of Biden’s parole programs.[xix] The transit ban is said to be questionable by onlookers as it could endanger the lives of many thousands of people seeking asylum. Moreover, the transit ban will affect people who, even though on U.S. soil, “will be denied the legal right to seek protection”, which could potentially be in violation of U.S. asylum law.[xx] This could have a potential impact on the way this matter is litigated, and which protections are afforded to asylum seekers under the U.S. Constitution.
A similar ban was introduced by the Trump Administration in 2020. Still, it was quickly struck down in Al Otro Lado v. Wolf.[xxi] The transit ban under Trump’s presidency sought to expel thousands of asylum seekers from accessing the U.S. asylum process. The legality of the transit ban, which was applied to asylum seekers who were turned back at the U.S.-Mexico border, was challenged by various legal services organizations.
The question now is whether or not the new transit ban under Biden’s Administration will be struck down as seen during Trump’s Administration. Only time will tell, but for now, we are left with the daunting question of whether this will be an American dream or an American nightmare for those seeking asylum in the U.S.
[i] Title 42 Explained: What is it, why is it ending, what’s next?, The Hill (May 11, 2023), https://thehill.com/homenews/administration/4000948-title-42-explained-what-is-it-why-is-it-ending-whats-next/.
[ii] Id.
[iii] Id.
[iv] Huisha-Huisha v. Mayorkas, No. 21-100 (EGS), 2022 WL 16948610, *1 (D.D.C. Nov. 15, 2022).
[v] Id. at *16.
[vi] Id.
[vii] Migrants Face New Border Reality as Title 42 Pandemic Restrictions Expire, PBS News Hour (May 12, 2023), https://www.pbs.org/newshour/politics/migrants-face-new-border-reality-as-title-42-pandemic-restrictions-expire.
[viii] Title 42 Explained: What is it, why is it ending, what’s next?, The Hill (May 11, 2023), https://thehill.com/homenews/administration/4000948-title-42-explained-what-is-it-why-is-it-ending-whats-next/.
[ix] Id.
[x] Title 42 Immigration Policy Has Expired as Border Officials Prepare for a Possible Influx, NBC News (May 12, 2023), https://www.nbcnews.com/news/latino/live-blog/live-updates-title-42-immigration-policy-set-expire-midnight-rcna83908.
[xi] Id.
[xii] What is Title 8 Immigration Law? And What Happens When Title 42 Ends?, ABC Eyewitness News (May 11, 2023), https://abc7chicago.com/title-8-immigration-law-42-explained-vs/13234991/#:~:text=Title%208%2C%20which%20includes%20decades,were%20afforded%20under%20Title%2042.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] DHS and DOJ Finalize Rule to Incentive Use of Lawful Immigration Pathways, Homeland Security (May 10, 2023), https://www.dhs.gov/news/2023/05/10/dhs-and-doj-finalize-rule-incentivize-use-lawful-immigration-pathways.
[xvii] Weekly U.S.-Mexico Border Update: Title 42 Ends, WOLA (May 12, 2023), https://www.wola.org/2023/05/weekly-u-s-mexico-border-update-title-42-ends/.
[xviii] Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban, American Immigration Council (February 21, 2023), https://www.americanimmigrationcouncil.org/news/department-justice-and-department-homeland-security-release-details-dangerous-new- asylum#:~:text=As%20described%20in%20the%20NPRM,in%20another%20country%20before%20arrival.
[xix] Id.
[xx] Weekly U.S.-Mexico Border Update: Title 42 Ends, WOLA (May 12, 2023), https://www.wola.org/2023/05/weekly-u-s-mexico-border-update-title-42-ends/.
[xxi] Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban, American Immigration Council (Feb. 21, 2023), https://www.americanimmigrationcouncil.org/news/department-justice-and-department-homeland-security-release-details-dangerous-new- asylum#:~:text=As%20described%20in%20the%20NPRM,in%20another%20country%20before%20arrival.
American Journal of Trial Advocacy 
