Adam Isacson

With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here.

This week:

• The Biden administration released a draft rule that, if implemented, would deny asylum to many migrants who passed through other countries on their way to the U.S.-Mexico border, and did not first seek asylum in those countries. This is part of a controversial series of restrictions and alternative pathways that the administration expects to have in place after the Title 42 pandemic authority possibly expires on May 11.
• One of those pathways includes use of the “CBP One” smartphone app to schedule asylum application appointments at land-border ports of entry. The app, functioning for over a month as a means to obtain Title 42 exemptions, continues to have problems, particularly a very small number of available appointments.
• Application of Title 42 to Cuban migrants appears to have slowed their arrival at the U.S.-Mexico border, but it also appears to have caused a jump in maritime migration from Cuba to Florida.
• The Supreme Court canceled oral arguments, scheduled for March 1, on Republican states’ effort to prevent Title 42 from terminating. The Court did not take down its order keeping the pandemic expulsion authority in place, though, so Title 42 remains active at least until May 11, 2023.

The asylum “transit ban” rule is out

On February 21 the Departments of Homeland Security and Justice took a step that the Biden administration had first previewed on January 5. The administration introduced a draft rule ( “Notice of Proposed Rulemaking”) that would deny the legal right to seek asylum to many migrants who passed through other countries on their way to the U.S.-Mexico border and did not first seek asylum in those countries.

The rule would partially shut down, to a historic and legally questionable extent, the right to seek asylum upon reaching U.S. soil, as laid out in Section 208 of the Immigration and Nationality Act.

This “transit ban” is part of an edifice of asylum limitations and alternative pathways that the Biden administration is building ahead of the Title 42 authority’s possible end on May 11, 2023, when the U.S. government’s COVID-19 public health emergency is to end. A February 17 WOLA commentary explains these new components.

• The new limitations on asylum include the transit ban, the placement of asylum seekers into expedited removal proceedings, and discussions  with Mexico’s government to take other countries’ citizens as deportees. To what extent Mexico might do that is unclear—the draft rule refers only to Mexico’s “willingness to accept the return of these nationals”—and appears to depend on the U.S. government offering other legal pathways.
• The pathways include two years of “humanitarian parole” in the United States, with work authorization, for some nationalities’ citizens who hold passports and have U.S.-based sponsors, along with use of a smartphone app, “CBP One,” to schedule appointments to request asylum at ports of entry (official border crossings).

The 153-page draft rule refers to a “rebuttable presumption of asylum ineligibility.” It has exceptions for some asylum seekers. The transit ban does not apply to:

• Migrants who make an appointment ahead of time to apply for asylum at a port of entry (official border crossing) using new features on Customs and Border Protection’s (CBP) “CBP One” smartphone app.
• Unaccompanied children.
• Migrants who can prove that they face risk of a medical emergency, are a “victim of a severe form of trafficking in persons,” or face “an imminent and extreme threat to life or safety.”
• Migrants who can demonstrate that the CBP One app’s appointment-scheduling function was “inaccessible or unusable.”
• Migrants who, in an interview, can prove not just that they might qualify for asylum, but that they meet a higher standard of fear (“reasonable fear”).
• Migrants who can prove that they tried and failed to receive asylum in Mexico and other countries through which they passed.

Despite these exceptions, this rule could potentially turn away thousands of asylum-seeking migrants during its first months of operation. At the American Immigration Council’s Immigration Impact site, Dara Lind walked through the Kafkaesque “12 Not-at-All-Easy Steps” through which asylum seekers would have to pass once the transit ban rule goes into effect.

Immigration reform and advocacy groups quickly raised objections. Thirty groups (including WOLA) added statements to a #WelcomeWithDignity campaign warning that “Biden’s Asylum Ban Will Return Refugees to Danger and Death.” The American Immigration Council called it “one of the most restrictive border control measures to date under any president.”

ACLU attorney Lee Gelernt, who has litigated several Trump and Biden administration efforts to curtail asylum, said, “We will sue if this administration goes through with a transit ban, just as we successfully sued over the Trump transit ban.” (A 2019 Trump-era ban, with even fewer exceptions and alternate pathways, was struck down in federal court in 2020.)

Congressional Democrats voiced quick opposition. Reps. Jerrold Nadler (D-New York, the ranking Democrat on the Judiciary Committee) and Pramila Jayapal (D-Washington, ranking Democrat on the Judiciary Subcommittee on Immigration) wrote, “The ability to seek asylum is a bedrock principle protected by federal law and should never be violated. We should not be restricting legal pathways to enter the United States, we should be expanding them.” Sens. Bob Menendez (D-New Jersey), Cory Booker (D-New Jersey), Ben Ray Luján (D-New Mexico), and Alex Padilla (D-California) wrote, “We have an obligation to protect vulnerable migrants under domestic and international law and should not leave vulnerable migrants stranded in countries unable to protect them.”

The proposed rule was published in the Federal Register on February 23. Members of the public have until March 27 to submit comments, to which the administration must respond before implementing it. The rule would go into effect the moment that the Title 42 authority expires, and last for two years, a period that could be extended.

CBP One issues persist

“When U.S. Customs and Border Protection introduced the CBP One mobile application two years ago,” the Washington Post’s Nick Miroff wrote on February 20, “it was largely geared toward commercial trucking companies trying to schedule cargo inspections.” Now, features on the app are essential to accessing the Biden administration’s humanitarian parole program for five nationalities, and to making appointments to request asylum at ports of entry, under a limited number of Title 42 exemptions.

With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here.

This week:

• As January’s expansion of Title 42’s scope closed channels for asylum-seeking migration, the number of migrants encountered at the U.S.-Mexico border plummeted by 40 percent from December, according to newly released CBP data.
• Migration through Panama’s Darién Gap increased in January for the third straight month, while at least 39 migrants aboard a bus taking them away from the Darién region perished in a gruesome accident. A report from UN-affiliated experts documented serious allegations of abuse committed against migrants in Panama’s Darién region encampments. U.S., Colombian, and Panamanian officials visited the region and pledged more security-force presence.
• The Biden administration’s new “humanitarian parole” program admitted over 11,000 citizens of Cuba, Haiti, Nicaragua, and Venezuela in January. The need to obtain a passport and a sponsor has overwhelmed nations’ passport authorities and opened opportunities for fraud.
• Texas is considering a $4.6 billion, two-year outlay for its “Operation Lone Star” border crackdown, including the continued deployment of over 4,500 National Guard troops. Border Patrol, meanwhile, has asked Texas’s legislature for more power to enforce Texas state laws.

Migration to the U.S.-Mexico border declined 40 percent from December to January

U.S. Customs and Border Protection (CBP) published data on February 10 revealing a sharp drop in the number of migrants whom the agency encountered at the U.S.-Mexico border in January. The 40 percent decline in migrant encounters, to 156,274 in January from 251,978 in December, owes to the Biden administration’s January 5 expansion, from five to eight, of the number of countries whose citizens can be expelled immediately to Mexico under the “Title 42” pandemic authority. (Several recent WOLA Border Updates detail this expansion.)

This was the smallest number of CBP U.S.-Mexico border migrant encounters since February 2021, the first full month of the Biden administration. The agency “encountered” 115,226 individual people 156,274 times in January. Of those “unique individuals,” 27,864 arrived at land-border ports of entry, which would leave a remainder of about 87,362 individuals taken into Border Patrol custody between the ports of entry.

41 percent of encounters ended with Title 42 expulsions, the largest percentage since June 2022. Nationalities most frequently expelled were:

• Guatemala (63% of the 11,937 migrants encountered were expelled, up from 57% in December)
• Mexico (62% of 61,904; 54% in December)
• Nicaragua (59% of 3,377; 0.3% in December)
• Honduras (58% of 10,995; 50% in December)
• El Salvador (54% of 3,748; 49% in December)
• Cuba (41% of 6,433; 0.1% in December)
• Ecuador (26% of 9,012; 8% in December)
• Venezuela (23% of 9,097; 63% in December)
• Colombia (9% of 9,310; 6% in December)
• Peru (4% of 3,931; 0.4% in December)
• Brazil (1% of 1,093; 0.2% in December)
• Haiti (1% of 3,175; 0.0% in December)
• Other countries (1% of 12,712; 1% in December)
• China (0.4% of 1,084; 1% in December)
• Russia (0.2% of 4,509; 0.3% in December)
• India (0.0% of 2,657; 0.0% in December)
• Turkey (0.0% of 1,300; 0.0% in December)

Regardless of their susceptibility to expulsion, all nationalities’ migrant encounters declined from December to January except those from Mexico (+28%), China (+14%), and Venezuela (+12%); citizens of Mexico and Venezuela are subject to Title 42 expulsion, but for the first time, a majority of Venezuelan migrants were encountered at land-border ports of entry (official border crossings), instead of “in the field” between the ports, where Border Patrol operates.

This indicates that a significant number of Venezuelans were able to secure a limited number of Title 42 exemptions, many through use of a smartphone app (“CBP One”) that CBP began using in January to book appointments at ports of entry. CBP reported processing 21,661 Title 42 exemptions at ports of entry in January, including 9,902 who made appointments via CBP One between January 18 and 31.

With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here.

This week:

• The U.S. government’s COVID-19 public health emergency is set to end on May 11, 2023—and with it the Title 42 order that has expelled over 2.5 million migrants from the U.S.-Mexico border. Should Title 42 indeed end on May 11, the Biden administration is rolling out plans that would continue to restrict many migrants’ access to asylum, including a “transit ban” and ultra-rapid adjudication of asylum cases under conditions of expedited removal. Mexico may be convinced to accept U.S. deportees while a “humanitarian parole” program remains in place.
• A House Oversight and Accountability Committee hearing, with two Border Patrol sector chiefs as witnesses, highlighted sharp disagreements between Republican and Democratic members. Legislators appeared unable to agree even whether, as data indicates, fentanyl is primarily transshipped in vehicles at border ports of entry, rather than by migrants between the ports of entry.
• CBP released a long-awaited report detailing deaths of migrants at the border between 2017 and 2021, categorizing remains by nationality, gender, cause of death, age, and the border sector where they were encountered.

As Title 42 faces a new end date, the Biden administration’s new plans to limit asylum access come into focus

In a February 6 brief filed before the Supreme Court, the Biden administration reiterated its intent to terminate the U.S. government’s COVID-19 “public health emergency” on May 11, 2023. The Center for Disease Control and Prevention’s (CDC) August 2021 order prolonging the Title 42 pandemic policy, which mandated that migrants be expelled from the U.S.-Mexico border regardless of asylum needs, states that Title 42 ends when the public health emergency ends.

This will be the third declared end date of the Title 42 policy, which the Trump administration instituted in March 2020 and both administrations have since used to expel migrants from the U.S.-Mexico border 2.5 million times. Mexico has agreed to accept expulsions of its own citizens and, in a list that has expanded since October 2022, those of seven other countries (Cuba, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, and Venezuela).

The CDC declared in April 2022 that the COVID pandemic was no longer so severe as to justify Title 42, and had set an end date of May 23, 2022. Several Republican-governed states filed suit in a Louisiana federal court to block the policy’s termination, and the Supreme Court kept the policy in place while arguments proceeded. In a separate case, a Washington, DC federal judge struck down the Title 42 policy in November 2022, calling it “arbitrary and capricious” and  setting a termination date of December 21, 2022. That decision, too, came under challenge from Republican states, which convinced the Supreme Court to order that Title 42 remain in place while the justices considered their appeal.

The Biden administration’s latest filing argues that the Republican states’ challenge is moot, because ending the government’s COVID-19 state of emergency undermines any basis for keeping Title 42 in place. (“Title 42” refers to the part of the U.S. Code dealing with “Public Health and Welfare.” It is hard to justify expelling migrants under a public health provision after the public health emergency ends.)

The CDC’s order had spelled out two ways of ending the Title 42 policy: either CDC determining it was no longer necessary, or the larger public health emergency coming to an end. The Republican states’ challenge blocked the first path. The administration’s new brief spells out the second path.

While Title 42 is likely to end on May 11, nothing is guaranteed. Republican state governments have had success challenging this and other Biden administration policies in the federal judiciary’s Fifth Circuit, known for its judges’ conservative tendency. While these states have no interest in maintaining the COVID emergency—they have long chafed under pandemic restrictions—they may seek to convince a Fifth Circuit judge to concoct a means to exclude protection-seeking migrants, at a time of very high numbers of migrant encounters at the U.S.-Mexico border.

In the U.S. Senate, meanwhile, a bipartisan group of senators led by Sen. Jon Tester (D-Montana) reintroduced legislation that would keep Title 42 in place for two months after the end of the COVID state of emergency, while requiring the administration to submit “a plan to address the impacts of the post-Title 42 migrant influx.”

The administration’s plan is taking shape. Its Supreme Court brief makes clear that it does not intend to restore fully the right to seek asylum at the border after May 11. It expects to put in place two related measures:

1) “In the coming weeks,” the brief reads, the administration will issue a proposed rule (first announced on January 5) that would reject many asylum seekers who passed through third countries en route to the U.S.-Mexico border and did not request asylum in those countries. Such migrants “will be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet exceptions that will be specified.”

Migrants’ rights advocates call this “transit ban” or “asylum ban” a “death sentence” because it is likely to return to danger people with legitimate protection claims. Under this ban, the only nationality not subject to this ineligibility would be Mexicans, who pass through no other country on their way to the border.

The Trump administration put in place a similar ban in 2019, only to see it struck down in federal court. The Biden administration is seeking to avoid that outcome with still-undetermined modifications and exceptions, and by submitting the policy to the federal government’s deliberative “notice and comment” rulemaking process.

“The Biden administration will undoubtedly argue that because the proposed rule imposes only a rebuttable presumption instead of an outright prohibition, it is distinguishable from Trump’s legal ban and will pass legal muster,” wrote the Center for Gender and Refugee Studies’ Karen Musalo at Just Security. “But the facts on the ground do not support even a presumption of safety and access to a full and fair procedure.”

In a February 8 letter to President Biden, Sens. Dick Durbin (D-Illinois, chairman of the Senate Judiciary Committee) and Alex Padilla (D-California, chairman of the Judiciary Subcommittee on Immigration, Citizenship, and Border Safety) objected to the “transit ban.” They recalled that current U.S. law allows asylum seekers to be sent to another nation under only two narrow circumstances:  if the United States has a “safe third country” agreement with that nation (one only exists with Canada), or if the migrant was already “firmly settled” there. Very few asylum seekers’ cases meet either of these conditions. “We are deeply concerned,” the senators wrote, “ that establishing a higher standard for asylum based on passage through a third country would circumvent this statutory scheme and undermine the fundamental right to asylum, violating the letter and spirit of the law.”

2) Even if allowed to seek asylum, the administration plans to subject many migrants to expedited removal, requiring them to defend their cases within days of being apprehended, while still in Customs and Border Protection (CBP) or Border Patrol custody at the agencies’ jail-like holding facilities, and with little or no access to counsel. Those who fail “credible fear interviews” with U.S. asylum officers, usually held by videoconference or over the phone, will be swiftly removed from the United States.

With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here.

This week:

• The Biden administration is “poised” to roll out an “expedited removal” effort that could require many asylum seekers to defend their cases within days of apprehension, while in CBP custody. Seventy-seven U.S. legislators objected to another administration proposal, which would presumptively deny asylum to migrants who fail to apply for it in countries through which they passed en route to the U.S. border.
• The early January expansion of Title 42 expulsions into Mexico, which now encompasses citizens of eight countries, appears to have contributed to a 40 percent reduction in border migrant encounters from December to January. Title 42 could end with the May 11 termination of the federal government’s COVID-19 health emergency. Over 7,500 Cuban, Haitian, and Nicaraguan migrants have been approved for humanitarian parole under a program being challenged by a lawsuit from Republican state governments.
• All along the border, media reports are pointing to chronic, mostly fixable problems with the CBP One smartphone app, which the agency is using to allow asylum seekers to apply for Title 42 exemptions. One of the hardest-hit populations appears to be Haitian asylum seekers, whose near-universal use of the exemption program’s pre-app iteration had been a rare procedural success.

Biden administration moving toward rapid asylum adjudication similar to Trump-era programs

Five sources told Reuters that the Biden administration is “poised” to roll out a procedure to perform “fast track” screenings of asylum seekers, while they remain in CBP custody, within days of their apprehension at the U.S.-Mexico border.

If migrants seeking asylum don’t get expelled under the Title 42 pandemic authority, they normally either go to Immigration and Customs Enforcement (ICE) detention, where they face an immigration judge usually within months, or (in nearly all cases if the asylum seeker is a child or a parent with children) they are released into the United States with dates to appear in immigration court.

The administration’s emerging plan, first indicated in a January 5 Department of Homeland Security (DHS) document, would seek to limit these releases by applying a procedure known as “expedited removal” to more asylum seekers. Those subject to expedited removal may never see an immigration judge. They undergo a preliminary screening with an asylum officer, called a “credible fear interview” (CFI). Those who fail this screening are removed from the United States.

Under the administration’s plan, credible fear interviews would happen within days of asylum seekers entering Customs and Border Protection (CBP) or Border Patrol custody, while they remain in those agencies’ detention facilities. Interviews in most cases would be remote, with asylum officers based elsewhere.

Advocates worry that the rushed procedure could end up with many “false negatives.” Asylum seekers subjected to this process would be exhausted from their flight to the border, disoriented from days in CBP’s jail-like holding cells, and unable to narrate their stories clearly to an asylum officer over a web-conferencing service, without meaningful access to counsel. The result could be more cases of vulnerable people removed to places where they face high probability of persecution, a human rights violation known as “refoulement.”

A January 26 NIJC explainer laid out the risks of applying expedited removal to asylum seekers in CBP custody:

This screening, called a Credible Fear Interview (CFI), is meant to set a “low bar” and usher asylum seekers towards full processing.

In practice, this low bar has become an insurmountable hurdle for many reasons. First, CBP frequently fails to refer people for CFIs. Second, even where CBP properly refers people, the CFI process is often dizzying for asylum seekers, who are frequently detained, need guidance on U.S. asylum law, and lack the time and language access they need to prepare for this consequential interview. Third, people placed in expedited removal rarely can secure legal counsel, who would properly guide them through this process and help them articulate their story to a Department of Homeland Security (DHS) asylum officer.

NIJC and other groups are calling the administration’s proposal a revival of Trump administration programs that President Biden had ended with a February 2, 2021 executive order. Starting in Border Patrol’s El Paso Sector in 2019, DHS implemented two parallel programs: Prompt Asylum Claim Review (PACR), applied to non-Mexicans, and the Humanitarian Asylum Review Process (HARP) for Mexicans. PACR and HARP led to the detention and rapid removal of over 5,000 asylum seekers, usually after a few days in CBP custody.

“PACR/HARP essentially flipped CFI pass rates on their head,” the NIJC explainer noted. “Instead of nearly 75% of asylum seekers passing their CFIs, passage rates plummeted to less than 25%.”

Transit ban

In addition to this rapid adjudication process, the Biden administration (as DHS announced on January 5) plans to use the federal government’s rule-making process to establish a very high barrier to future asylum seekers. Should this rule go into effect, asylum seekers who passed through third countries on their way to the U.S. border, and did not seek asylum there, “will be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet exceptions that will be specified.”