As alluded to in the prior blog posts in this series, Title 8 of the U.S. Code is once again the controlling law over immigration policy at the border. However, the policy did not return to the status quo after Title 42 expired. Instead, the Biden administration’s asylum final rule, known as Circumvention of Lawful Pathways, went into effect upon Title 42’s expiratio

The Trump administration’s invocation of Title 42 was not unprecedented.[1] However, this drastic measure was inconsistent with the Administration’s response to the COVID-19 pandemic generally. While stoking fears of migrants introducing and spreading the virus into the U.S. without evidence to support such claims, the Administration continually and aggressively downplayed the threat of the virus generally, consistently undermining the advice and expertise of health experts and stifling the country’s ability to respond generally.

On the other hand, President Trump consistently spewed xenophobic language and unrelentingly pursued actions to limit all forms of immigration into the United States, especially for the most vulnerable individuals. The Administration implemented a series of policies curtailing asylum, removed certain due process protection for immigrants, and ended temporary immigration protection for hundreds of thousands of people by terminating DACA and TPS, among many others.

The Administration’s dramatically different response to the scientifically proven threat of COVID-19 and the unsupported threat posed by immigrants arriving and living within the U.S. overwhelmingly suggests the Administration invoked Title 42 not to protect Americans from a deadly virus, but rather to accomplish its ulterior motive of enacting anti-immigrant policies, many of which had been enjoined by federal courts. This inconsistency is chronicled below.

 

Policies Introduced—and Prohibited by Courts— to Limit Access to Asylum Policies and or Comments Downplaying Severity of COVID-19 Pandemic

Migrant Protection Protocols (MPP) or “Remain in Mexico”

The Migrant Protection Protocols, also known as the “Remain in Mexico” policy, was implemented in January 2019 and required certain asylum seekers to wait in Mexico for the duration of their immigration court proceedings. The policy faced legal challenges, and in February 2020, the Ninth Circuit Court of Appeals upheld a district court’s injunction against the policy in the case of Innovation Law Lab v. McAleenan, 951 F.3d 1073, 1078 (9th Cir. 2020). The policy was not allowed to continue during the duration of the Trump Administration; however, the Supreme Court lifted the injunction in March 2021, allowing the policy to continue until it was later formally terminated by the Biden administration in June 2021 and subject to subsequent litigation.

 

Asylum Ban

The Trump administration issued a rule in July 2019 that sought to categorically deny asylum eligibility to individuals who crossed the southern border between ports of entry. This policy was challenged in court and in July 2020, the Ninth Circuit Court of Appeals, in the case of East Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 838 (9th Cir. 2020) affirmed a district court’s preliminary injunction, effectively blocking the policy. As a result, the asylum ban was not allowed to continue.

 

Third-Country Transit Ban

In July 2019, the Trump administration issued a rule that barred individuals from seeking asylum in the United States if they had passed through a third country without applying for protection there first. This policy faced legal challenges and in September 2019, the Ninth Circuit Court of Appeals upheld a preliminary injunction against the policy. The Supreme Court later ruled in favor of the administration in a separate case, Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019), and allowed the policy to be implemented while litigation continued. However, the policy was later replaced by the Title 42 expulsions due to the COVID-19 pandemic.

 

Zero Tolerance Policy and Family Separation

The “Zero Tolerance” policy, announced in April 2018, aimed to prosecute all individuals crossing the border unlawfully, including those seeking asylum. As a result, families were separated as parents were criminally prosecuted. This policy faced significant public backlash and legal challenges. In June 2018, a federal judge in the case of Ms. L v. ICE, 302 F. Supp. 3d 1149 (S.D. Cal. 2018), issued a preliminary injunction ordering the administration to reunite separated families. Subsequent court orders and settlements further required the reunification of separated families. The policy was effectively discontinued, and a court-appointed steering committee oversaw the reunification process; this litigation continues today. More than 5,000 children were forcibly removed from their parents, hundreds remain permanently orphaned.

 

Hydroxychloroquine

Former President Trump frequently touted hydroxychloroquine as a potential treatment for COVID-19, even calling it a “game-changer.” However, scientific studies and health experts raised concerns about the lack of sufficient evidence supporting its effectiveness and potential risks. The FDA revoked the emergency use authorization for hydroxychloroquine in June 2020.

 

Injecting Disinfectants

In a press briefing in April 2020, President Trump suggested the possibility of injecting disinfectants or using ultraviolet light inside the body as a potential treatment for COVID-19. This statement was widely criticized by medical professionals and experts as dangerous and without scientific basis. Health agencies promptly issued warnings against such practices.

 

Downplaying the Severity of the Virus

There were instances where the former administration downplayed the severity of the virus. For example, early in the pandemic, there were statements that suggested the virus would disappear quickly or that it was under control, which did not align with scientific projections or the evolving situation.

 

Mask Usage

There were mixed messages regarding the importance of wearing masks to prevent the spread of COVID-19. Initially, there was resistance to widespread mask usage, with suggestions that masks were not necessary for the general public. However, scientific evidence increasingly supported the effectiveness of masks, leading to revised recommendations from health agencies.

 

Specifically Undermining Infectious Disease Experts

There were numerous instances where former President Trump made statements that undermined or questioned the expertise and motives of Dr. Anthony Fauci, a leading infectious disease expert and a prominent member of the White House Coronavirus Task Force. Here are a few notable examples, including 1) certain treatment approaches for COVID-19, e.g., the effectiveness of hydroxychloroquine, the use of remdesivir, and the timing of reopening businesses and easing restrictions; 2) President Trump’s July 2020 retweet of a post that criticized Dr. Fauci and other public health experts, downplayed the severity of pandemic, including the statement, “. . . deaths are really down and going down further,” and 3) generally downplaying the severity of the virus to Americans.

 

The Legacy of Title 42: More Restrictive Asylum Rules and Policies

Despite the dubious motivations for implementing Title 42 and the failure of the threatened doomsday scenario of an unmanageable Southern U.S. Border upon its expiration, the expiration of Title 42 nevertheless led to the introduction of new and more restrictive asylums rules and processes, known as the Circumvention of Lawful Pathways. The new regulation means people fleeing their home countries due to violence and instability, who undertake an uncertain, life-threatening journey to seek refuge in the U.S., will be rendered ineligible for asylum unless they can meet one of a handful of exceptions. Each of these policies, which will be discussed in related, forthcoming blog posts, cause individuals requesting asylum to be generally presumed ineligible unless they or an accompanying family member can show: 1) prior entry through parole; 2) they’ve sought and been denied protection in another country en route to the U.S.; or 3) successful use of a DHS scheduling system, CBP One.

 

[1] A few examples of when Title 42 provision had been utilized prior to COVID-19 include: 1) HIV/AIDS: In the past, Title 42, Section 265 has been invoked to enforce restrictions on the entry of individuals with HIV/AIDS into the United States. This policy, commonly known as the HIV travel ban, was in effect from 1987 until it was lifted in 2010; 2) SARS (Severe Acute Respiratory Syndrome): During the SARS outbreak in 2003, Title 42, Section 265 was utilized to implement health measures at U.S. ports of entry to prevent the entry and spread of the disease; 3)  Ebola: Title 42, Section 265 was invoked during the Ebola outbreak in 2014-2016. It was used to implement enhanced screening and health measures for individuals entering the United States from countries affected by the Ebola virus; and 4) Zika virus: In 2016, Title 42, Section 265 was invoked to address the Zika virus outbreak. Measures such as enhanced screening and mosquito control efforts were implemented to prevent the spread of the virus.

Photo by Greg Bulla on Unsplash.

Two months have passed since Title 42’s expiration. In the months and days leading up to its ending, certain national politicians and news media organizations created the impression through a constant drum beat of warnings of a “surge” of thousands upon thousands of migrants at the Southern U.S. border. They warned that a perceived, relaxed immigration policy threatened to overwhelm America’s robust border security apparatus. However, this unmanageable, anarchic situation failed to materialize—federal officials did not see a “major influx” of migrants when Title 42 ended[1]. Instead of the introduction of thousands of new migrants who would have otherwise been automatically expelled and denied their legal right to seek asylum under Title 42, the policy’s expiration resulted in the introduction of new, more restrictive asylum rules and processes. The processes, which require migrants to use a newly introduced cellphone application[2] and include the introduction of certain rules echoing aspects of the Trump administration’s attempts at functionally eliminating the ability of migrants to seek asylum prior to the introduction of Title 42, are now in effect. Accordingly, practitioners should be knowledgeable of them moving forward. We will continue discussing these changes in detail in a series of blog posts begun with our post about the new CBP One App. Before discussing the new rules and processes that remain following the settling of Title 42’s dust, it is helpful to understand the context explaining how we got here.

 

What is Title 42?

As an initial matter, it is important to note that Title 42 is not an immigration law; rather, Title 42 refers to a specific section of the United States Code, the comprehensive compilation of federal laws. Title 42 encompasses a wide range of laws related to public health and social welfare—it is not exclusively or even primarily focused on immigration. This section of the U.S. Code covers various health-related topics, including provisions related to the control and prevention of diseases, public health service, and the responsibilities of the Department of Health and Human Services.

How then was a health-related law permissively used nearly 3 million times[3] since March 2020 to expel individuals from the country arriving primarily to the southern border? How was a health-related law permissively used to disregard otherwise legal rights promised to those fleeing persecution? Within Title 42 is Section 265, commonly referred to as “Title 42 expulsions” or the “Title 42 public health rule,” granting the Secretary of Health and Human Services (HHS) the authority to take measures to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the United States[4]. Accordingly, in times of public health emergencies, the Secretary of HHS has powers otherwise within the jurisdiction of their colleague, the Secretary of the Department of Homeland Security.

In contrast, Title 8—not Title 42—is the most relevant and comprehensive Title of the U.S. Code compiling federal laws relating to immigration[5]. Title 8 of the U.S. Code, titled “Aliens and Nationality,” is divided into several chapters and contains the federal laws related to immigration and nationality in the United States. It encompasses a wide range of provisions that govern various aspects of immigration, including entry, admission, status, removal, naturalization, and the rights and responsibilities of non-citizens in the country.

 

Title 42: An Expedient Tool to Accomplish Anti-Immigrant Goals

From the beginning of what would become the COVID-19 global pandemic, the Trump Administration, at best, sent mixed messages regarding the severity of the threat of coronavirus generally. However, the Administration had no such ambivalence about the threat of the virus coming from the Southern border. The Trump Administration swiftly implemented policies that indicated COVID-19 posed a serious health emergency as far as migrants were concerned. The Trump Administration invoked Title 42, Section 265 and began expelling migrants on March 20, 2020. The administration justified the invocation of Title 42 to expel migrants and effectively closed the border as a measure to prevent the introduction and spread of COVID-19 into the United States. While at the same time, the Trump Administration repeatedly underplayed the severity of the virus and actively undermined necessary measures to secure the health and safety of Americans during the Pandemic.

 

[1] Garcia, Uriel J., “Border Didn’t See a “Major Influx” of Migrants When Title 42 Ended, Federal Officials Say,” Texas Tribune (May 12, 2023), https://www.texastribune.org/2023/05/12/texas-border-immigration-title-42-migrants/

[2] Houston Immigration Legal Services Collaborative, The New Asylum Rule – CBP One, (https://www.houstonimmigration.org/the-new-asylum-rule-cbp-one/)

[3] It is important to note that more than half of the expulsions carried out in furtherance of Title 42 were of individuals who sought to enter more than once. The number of expulsions under Title 42 therefore does not reflect an increase in the number of individuals trying to enter; rather, as a result of Title 42, over a million individuals sought to enter multiple times after an initial expulsion.

[4] The specific language of Section 265 states: “The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

[5] In addition to Title, several other Title contain provisions related to immigration related matters, including: Title 18, which includes provisions related to immigration offenses and penalties, such as illegal entry, smuggling, and fraud; Title 22, which deals with various aspects of U.S. foreign relations, including provisions related to the visas for diplomats and consular officers, diplomatic immunity, and international child abduction cases; and Title 26, which primarily focuses upon federal tax laws, and contains provisions relating tax obligations and benefits for non-citizen and foreign workers. Because immigration law is complex, Practitioners should be sure to consult regulations outside of the U.S. Code, as well as executive orders, administrative rules, and agency guidelines.

This is the first in a series of blog posts HILSC will be writing about the end of Title 42 and the imposition of the Biden administration’s Circumvention of Lawful Pathways final rule. This post explores the CBP One app and its use in the asylum seeker process.

On September 22, 2018, the Trump Administration released proposed harmful changes to the “public charge” rule. These changes would strongly raise new high barriers for prospective lawful permanent residents if they are poor or have used government benefits like Medicaid, SNAP (food stamps), Medicare’s Part D with prescription medication costs for seniors, or housing subsidies.

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CONTACT YOUR LAWMAKERS IN CONGRESS:

Ask Them To:

  • RESTORE ASYLUM NOW!
  • END THE MIGRATION PROTECTION PROTOCOLS “MPP” PROGRAM
  • SUPPORT PRO-ASYLUM LEGISLATION, INCLUDING THE “ASYLUM SEEKER PROTECTION ACT” (currently in committee in the House of Representatives)

PRO TIP: Contact your lawmakers through their local district office. Constituent relations is their top priority!

MOBILIZE ON SOCIAL MEDIA:

  • Follow, Learn, Share and Post #RestoreAsylumNow
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GET INVOLVED IN LOCAL ACTION:

On or before Tuesday February 25th, contact the Harris County Commissioners Court to voice your support for the creation of a legal defense fund for individuals facing deportation

On November 9, 2018, the Trump Administration issued an interim final rule and presidential proclamation seeking to ban refugees from obtaining asylum if they cross the southern border between official ports of entry. A federal court in California promptly issued a temporary restraining order suspending this asylum ban, following a lawsuit filed by the ACLU, Center for Constitutional Rights and the Southern Poverty Law Center.

This policy is cruel, unnecessary, and illegal. It has life or death consequences for families and individuals who are fleeing violence, desperation, and persecution. Asylum is a form of protection our government may grant to someone fleeing their country because they fear they will be harmed based on their race, religion, nationality, political opinion, or membership in a particular social group. Seeking asylum is protected within U.S. and international law.

How To Write Your Comment

State Your Opposition in your own words. Each comment should be unique, so be sure to add some addition language to your comment, should you use to copy some of the sample reasons to oppose the regulation, below:

  1. The regulation violates U.S. law and international treaty obligations. Seeking asylum is protected within U.S. and international law (Section 208 of the Immigration and Nationality Act (INA); Article 31 of the 1951 Refugee Convention).
  2. The rule unfairly penalizes refugees in need of protection because of how they enter the United States. This rule is another building block in this administration’s unprecedented assault on asylum seekers at the U.S. southern border. The administration is attempting to deny refugees asylum in the U.S. just because they crossed the border between ports of entry, despite the fact that there are many legitimate reasons why asylum seekers do not go to official crossing points.
  3. The regulation could leave refugees fleeing persecution without protection. The alternative fear-based protections to asylum are much more difficult to obtain than asylum, as they have more stringent requirements.
  4. Alternative forms of legal protection are insufficient. The alternative fear-based protections are inadequate substitutes to asylum as they do not offer the same protections as asylum and would leave people vulnerable to family separation, removal to third countries, and subject to barriers to education and work.
  5. The rule upends protections Congress created for unaccompanied children seeking asylum. The law requires that asylum officers, rather than immigration judges, first hear the cases of unaccompanied children so that they can recount the sensitive and often traumatic facts of their claims in a non-adversarial setting. (William Wilberforce Trafficking Victims Protection Reauthorization Act, TVPRA).
  6. This policy is cruel, unnecessary, and illegal. It has life or death consequences for families and individuals who are fleeing violence, desperation, and persecution.