Anticipating the expiration of the COVID-19 public health emergency on May 11, 2023, and with it the end of the special immigration regime instituted by the Center for Disease Control and Prevention's (CDC) public health orders, the Biden administration has taken measures to restructure migration to the U.S.-Mexico border.Footnote 1 Incentives for migrants in the form of new and expanded pathways for entry have been created, and disincentives in the form of exclusions from these and other pathways have been constructed. These actions are designed to reduce the number of migrants and asylum seekers who travel to the border. In conjunction with Canada, Colombia, Guatemala, Mexico, and Spain, among others, the Biden administration is seeking to establish a regional, comprehensive, and collaborative approach to migration, as envisioned in the Los Angeles Declaration on Migration and Protection in June 2022.Footnote 2 Two of the key components of the administration's strategy are parole processes for migrants from four countries and a rebuttable presumption of asylum ineligibility for non-citizens who enter the United States from Mexico without entry documents. Both were immediately challenged in court.
The COVID public health orders established a special regime—known colloquially as “Title 42”Footnote 3—that effectively displaced parts of Title 8's Immigration Code for most undocumented migrants at the southwest border.Footnote 4 Under the public health order, the CDC “suspend[ed] the [entry of] certain persons into the United States from countries or places where the quarantinable communicable disease exist[ed] in order to protect the public health from an increase in risk of the introduction of COVID–19.”Footnote 5 Pursuant to the order, the government expelled undocumented migrants peremptorily, including without asylum screenings.Footnote 6 Title 42 facilitated and sped border enforcement and was used to expel people more than 2.8 million times.Footnote 7 Title 8 immigration procedures, in contrast, would have required the government to allow undocumented migrants an opportunity to claim asylum, which would have been a longer and more intensive process, even under expedited removal authorities. Expulsion under the public health order, however, did not result in any penalties to expellees, and so undocumented migrants, if caught, could try again to enter the United States. Title 8, on the other hand, bars for five years the admission of persons who were previously removed through expedited removal.Footnote 8
The Biden administration anticipated that the return to the Title 8 framework in May 2023, following the expiration of the public health order, would overwhelm the Department of Homeland Security's (DHS) processing, detention, and removal capacities at the border.Footnote 9 The number of migrant encounters by the U.S. Border Patrol at the U.S.-Mexico border had already reached an all-time high, with 221,342 in December 2022 alone.Footnote 10 The combination of unparalleled numbers of migrants and a full return to a Title 8 system portended a crisis at the border, with overcrowded detention centers.
Seeking to preempt this, and in the absence of progress toward immigration reform in Congress, the administration resorted to its own authorities to deter migrants from coming to the border by providing alternatives and shifting incentives. As noted by Secretary of Homeland Security Alejandro Mayorkas, the administration's framework, which had been in preparation for a year and a halfFootnote 11 and put in place in stages since the end of 2022, broadly does two things: it “build[s] lawful pathways for people to come to the United States without resorting to the smugglers” and “impos[es] consequences on those who do not use those pathways and instead irregularly migrate to [the] southern border.”Footnote 12 The goals are to organize migration and make it safer, move migrants away from the southwest border, and to provide opportunities for lawful entry.
Designed to respond to the current causes of migration, particularly the economic, environmental, political, and humanitarian crises in Cuba, Haiti, Nicaragua, and Venezuela, the lawful pathways the administration has created or expanded include parole processes, family reunification parole programs, work visas, and refugee admissions. Since October 2022, DHS has announced four parole processes that allow non-citizens to enter the United States temporarily “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”Footnote 13 The first, for Venezuelans,Footnote 14 was followed by three others, for Cubans, Haitians, and Nicaraguans.Footnote 15 Under these programs, “beneficiaries” must have “supporters” who commit to financially maintain the parolee for two years, which is the duration of the parole. Up to 30,000 persons per month are eligible in the aggregate across the four programs. DHS has also announced new family reunification parole processes for certain nationals from Colombia, El Salvador, Guatemala, and Honduras and is expanding existing programs for Cuba and Haiti.Footnote 16 Separately, the administration has increased the availability of temporary work visas, including doubling the number of H-2B visas and specifically setting aside 20,000 of those for nationals of El Salvador, Guatemala, Haiti, and Honduras.Footnote 17 It has also promised to double the number of refugees admitted from the western hemisphere and modernize the U.S. Refugee Admissions Program.Footnote 18
The starting point for each of these four pathways is away from the border. Visa applications and refugee referrals occur outside the United States. The rules for the parole processes disqualify those who have “crossed irregularly into the United States, between [ports of entry]” or have “irregularly crossed the Mexican or Panamanian borders.”Footnote 19 To make access to these pathways more convenient and available, and thus to encourage migrants and refugees to use them and not travel to the U.S.-Mexico border, the United States is creating regional processing centers (RPC), known as “Safe Mobility Offices.”Footnote 20 RPCs will be staffed by officials from the International Organization for Migration (IOM) and the UN High Commissioner for Refugees (UNHCR), as well as personnel from DHS and the U.S. Department of State.Footnote 21 Migrants and refugees “will be able to make an appointment on their phone to visit the nearest RPC before traveling, receive an interview with immigration specialists, and if eligible, be processed rapidly for lawful pathways to the United States, Canada, and Spain.”Footnote 22 The first RPCs of a projected one hundred centers will be located Colombia and Guatemala.Footnote 23 “The whole model is to reach the people where they are, to cut the smugglers out, and to have them avoid the perilous journey that too many do not make,” Secretary Mayorkas explained.Footnote 24
To further induce the use of these pathways and discourage travel to the border, the administration has promulgated a new rule that penalizes asylum applicants who cross into the United States “irregularly,” that is, without valid entry documents. The rule establishes “a rebuttable presumption of ineligibility for asylum” for non-citizens who irregularly “enter[] the United States from Mexico . . . after . . . travel[ing] through a country other than [their] country of citizenship” when that country is a party to the 1951 Refugee Convention or the 1967 Protocol.Footnote 25 The presumption can only be rebutted by demonstrating “by a preponderance of the evidence that exceptionally compelling circumstances exist.”Footnote 26 If not rebutted by the person claiming asylum, “then the asylum officer . . . [will] enter a negative credible fear determination with respect to [their] asylum claim.”Footnote 27 That negative determination can only be overcome by establishing “a reasonable possibility of persecution,” a much more difficult standard to satisfy than the otherwise applicable “significant possibility” threshold.Footnote 28 The rule thus decreases the chances that non-Mexican nationals will be granted asylum.Footnote 29 An exception to the rule, however, allows migrants in central and northern Mexico (but not elsewhere) who schedule appointments at ports of entry through the CBP One app to seek asylum without the rebuttable presumption applying.Footnote 30 This exception has the effect of establishing another lawful pathway. On June 1, 2023, Assistant Secretary for Border and Immigration Policy Blas Nuñez-Neto, announcing an increase in the number of appointments available through the app from 1,000 to 1,250 per day, said that this “demonstrates our continued emphasis on lawful pathways to the U.S. and making sure that migrants have safe and orderly options to come to the United States.”Footnote 31 Arrests of undocumented migrants seeking to enter the United States have decreased 70% since the expiration of Title 42.Footnote 32
Understanding that unilateral acts alone, such as pathways and penalties, will not stem the flow of migrants, the Biden administration, in contrast to its predecessors, and in line with the Los Angeles Declaration, is taking a regional and international approach.Footnote 33 This includes expanding legal pathways in other countries. Belize, Colombia, Costa Rica, and Ecuador, according to the administration, “are each implementing new regularization or temporary protection policies to provide legal status to hundreds of thousands of migrants.”Footnote 34 Canada, Mexico, and Spain “have expanded refugee resettlement and temporary work opportunities.”Footnote 35 And Guatemala and Mexico have “significantly grown their asylum system[s].”Footnote 36 It also includes enforcement cooperation. Mexico announced that it would “for the first time . . . accept the returns under Title 8 authorities of nationals of Cuba, Haiti, Nicaragua, and Venezuela.”Footnote 37 The United States, Colombia, and Panama are collaborating on an anti-smuggling campaign in the Darién gap.Footnote 38 And Colombia, Cuba, Ecuador, Guatemala, Peru, and other countries have agreed to receive removal flights from the United States.Footnote 39 And it includes money for economic development and humanitarian assistance, such as “funding the staffing and capacity-building of local asylum centers and systems, and supporting registration and documentation efforts so that individuals can gain and demonstrate legal status.”Footnote 40
International organizations and non-governmental organizations have criticized the rule instituting a rebuttable presumption of ineligibility for asylum.Footnote 41 In a joint statement, IOM and UNHCR asserted that the rule was “incompatible with principles of international refugee law.”Footnote 42 The American Civil Liberties Union (ACLU), which led the successful legal fight against President Donald J. Trump's entry and transit bans,Footnote 43 pointed out the similarities between those and the Biden rule.Footnote 44 It also sought to undercut the administration's arguments that lawful pathways were practically available. Asylum seekers, the ACLU noted, “are often those least likely to have the resources or capability to use a complicated smartphone app in a foreign language or wait weeks or months in danger for an appointment.”Footnote 45 They are also not likely to have the ability to make use of the parole system, since many, including the most vulnerable, will not “have a U.S. financial sponsor, a passport, resources to pay for a costly plane ticket, and the ability to wait for the application's approval.”Footnote 46 Nor should asylum seekers be required to stay in third countries, as “these countries have not developed working asylum systems and . . . for many migrants, it would be pointless and life-threatening to stay and apply.”Footnote 47 The ACLU has sued to declare the new asylum rule invalid.Footnote 48 Another case, brought by Texas, requests the same relief.Footnote 49 A separate lawsuit, filed by Texas and twenty other states, seeks a ruling that the new parole programs are unlawful.Footnote 50
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