As Title 42 ends and Title 8 is fully reinstated, what are some of the implications for migrants?

WASHINGTON (OSV News) — On May 11, when the Title 42 public health order comes to an end, processing of migrants will be fully reinstated under Title 8, a measure that experts said would stiffen the consequences for migrants who attempt to cross the border into the United States irregularly. The Biden administration announced additional measures May 10 that would further harden the requirements to request asylum in the United States.

Troy Miller, U.S. Customs and Border Protection commissioner, testified before Congress in April that the agency is preparing for as many as 10,000 migrants to cross the southern border daily once Title 42 ends.

Title 42 is part of the U.S. federal public health law implemented by the Trump administration in 2020 at the onset of the COVID-19 pandemic to curb migration in the interest of public health. Since then, Title 42 has been invoked more than 2.7 million times to expel migrants, including asylum-seekers, according to U.S. Customs and Border Protection data. These include repeated attempts by the same people, since under Title 42, they were not penalized for attempting to cross. Health experts, the U.S. bishops and other Catholic migration advocates have criticized both Title 42 and the Biden administration’s continued use of the Trump-era policy.

On April 27, the State Department and the Department of Homeland Security announced new measures “to further reduce unlawful migration across the Western Hemisphere, significantly expand lawful pathways for protection, and facilitate the safe, orderly, and humane processing of migrants.” During a press conference May 10, Secretary of Homeland Security Alejandro Mayorkas provided further details on these measures.

“When the Title 42 order lifts, the United States will be strengthening its enforcement of long-standing Title 8 immigration authorities to expeditiously process and remove individuals who arrive at the U.S. border unlawfully and do not have a legal basis to remain,” stated a DHS fact sheet released May 10. “Individuals who cross into the United States at the southwest border without authorization or without having used a lawful pathway, and without having scheduled a time to arrive at a port of entry, will be presumed ineligible for asylum, absent an applicable exception. If removed, they will be barred from re-entry for at least five years and subject to potential criminal prosecution for repeated attempts to enter unlawfully.”

U.S. immigration policy generally differentiates those fleeing persecution in other countries from other migrants who cross the border unlawfully. The new rule, which the administration initially characterized as temporary, would scale back that approach.

Measures announced May 10 include expanding access to the app CBP One by transitioning it to a new appointment scheduling system for migrants to present themselves at a port of entry; deploying support for Border Patrol; “surging asylum officers to expedite processing times;” “stepping up their efforts to counter this misinformation by smugglers who pray on migrants;” and planning to build 100 new regional processing centers in Central and South America. DHS had previously announced new parole processes for family reunification for El Salvador, Guatemala, Honduras and Colombia, a commitment to welcome thousands of additional refugees from the Western Hemisphere per month, and announced over $250 million in additional assistance for communities receiving migrants.

Measures also include increased removal of “people who arrive at the southwest border and don’t have a legal basis to remain” and imposing consequences such as a five-year ban on reentry and the presumption of ineligibility.

On May 8, Dylan Corbett, director of the Hope Border Institute, told OSV News that “this government is going to change a discriminatory policy, a harsh policy against immigration and against migrants, for one that is going to be just as harsh. We anticipate that the situation is going to be as it is now; many people will be returned to Mexico or to their countries of origin.”

The Hope Border Institute describes itself as bringing “the perspective of Catholic social teaching to bear on the realities unique to our US-Mexico border region.”

“Sadly, the asylum ban policy that the administration is finalizing raises many barriers to the rights of migrants and asylum-seekers at the border,” Corbett said. “It’s going to limit access to asylum for the most vulnerable, and it’s going to return them to that situation of insecurity.”

When the Biden administration initially proposed the policy change to asylum, made official May 10, it was described as a temporary measure to block asylum-seekers who cross the border illegally or do not first apply for protection in other nations before coming to the United States. The measure, shared in February, was subject to a 30-day public comment period and was scheduled to go into effect as Title 42 ended.

The administration said this proposal seeked to reduce human smuggling networks and encourage migrants to use legal avenues to enter the U.S. Many Catholic migrant advocates condemned the proposal when it was first announced, saying it would significantly limit asylum in the U.S. and return already vulnerable people to danger.

In a May 10 statement shared with OSV News, Corbett said that the new measures amounted to “border communities and vulnerable migrants (being) sacrificed to politics.”

“Make no mistake. The new Biden border policy is a major blow to U.S. commitment to asylum, an unforced error by an administration ostensibly committed to immigration reform that will be hard to repair, and will result in pain and death,” he wrote.

“None of this is theoretical. As Pope Francis said when he visited us, we don’t measure (as does the White House) the impacts of bad policy in ‘numbers and statistics’, but ‘with names, stories and families,'” he added. “We need no more death and no more exploitation of migrants.”

Johanna Kelley, a Washington-based immigration lawyer, told OSV News May 7 that neither of the two measures — Title 42 nor Title 8 — favors irregular migration or illegal border crossings.

She commended alternative paths to stop irregular migration that can be accessed before reaching the U.S.-Mexico border, such as family reunification programs or the temporary authorizations (humanitarian paroles) available to a limited number of migrants from countries suffering political instability including Nicaragua, Haiti, Cuba and Venezuela.

Regarding Title 8, which has been the standard for migration to the United States for decades, Kelley explained that someone detained under this policy would be subject to expedited removal, which would mean removal without the right to make their case before an immigration judge. And in this scenario, Kelley said, “immigration authorities at the border have the jurisdiction, capacity and legal authority to process the removal of persons attempting to enter without authorization.”

With the end of Title 42, she foresees migrants at the border facing “expedited deportation processes, an increase in the number of automatic removals compared to previous months, greater scrutiny when entering the United States, and longer detentions.”

According to the May 10 announcement, the new rules presume individuals to be ineligible for asylum in most cases if they cross the border illegally or fail to request safe harbor in another nation before reaching the southern border, which has drawn comparisons to a Trump-era policy dubbed the “transit ban.” The regulation reflects a sharp shift in asylum policy for Biden.

Vanessa Joseph, supervising attorney with Catholic Legal Services in the Archdiocese of Miami, told CBS News Miami May 10 that there are “significant humanitarian issues” with these changes. Title 8 was originally devised when the migrant population coming to the U.S. was made of largely a male population coming for work opportunities, as opposed to families and people seeking asylum, she said.

In an April 28 statement, Bishop Mark J. Seitz of El Paso, Texas, chairman of the migration committee of the U.S. Conference of Catholic Bishops, expressed concern over some migration mitigation efforts, particularly the curtailing of asylum and its effects on people forced to flee life-threatening situations. “Those who will bear the brunt of these measures are those most desperately in need of relief — those whose lives hang in the balance,” he said.

Kelley explained the risks faced by someone attempting to cross the border irregularly beginning May 12. “You are subject to being detained, being expeditiously removed, and having a sanction of not being able to seek entry for five years and/or being detained on criminal charges for entering the U.S. irregularly,” she said.

Even before the new rules were shared, the lawyer recommended migrants with genuine asylum cases to follow the process through the regional centers set up for that purpose. If migrants tried to cross through irregular channels, Kelley stressed, they would risk losing their claim to enter, in addition to facing dangers along the way such as smugglers and other criminals operating in the border region.

She also said that a migrant crossing illegally would be “subject to immediate exclusion from regular entry and eligibility for the new programs, because what the government is saying is that if you are detained and processed under Title 8, there is a presumption that you would have no legal basis for asylum. That is, that there would be a legal presumption against you seeking asylum. The consequences are dire.”

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Kate Scanlon, national reporter covering Washington for OSV News, contributed to this report.

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