TLDR: On April 27th, Biden Administration officials announced their plans to help manage migration in light of Title 42, a pandemic health policy set to expire on May 11th. Use of Title 8 expedited removal proceedings, credible fear interviews in custody, and the proposed asylum transit ban rule will be tools used to make access to asylum more burdensome on asylum seekers. The introduction of legal pathways to migrate such as the expansion of CBP One app, parole program for certain countries, and establishing regional processing centers in Colombia and Guatemala are meant to dissuade migrants from traveling to the southern US border. Despite these policies and plans, seeking asylum at ports of entry or within the United States is still legal under current U.S. and international law.
Current Immigration Policies
Since 2020, Title 42 has been used by border officials 2.7 million times to expel migrants indiscriminately without an opportunity to access the asylum process. Without having a safe place to return to, this policy led to trapping asylum seekers in dangerous conditions with no resources in organized crime controlled regions in Northern Mexico.
In January of this year, the use of CBP One phone application was introduced to require that asylum seekers make an appointment for processing at points of entry. The CBP One app has come with a slew of technical glitches, access barriers, and limited appointment slots. Again, this policy has forced many asylum seekers to remain in Mexico in precarious situations while they wait sometimes months for an appointment on the CBP One application.
In an effort to prevent the influx of asylum seekers at the border the Administration also expanded a parole program for those from Cuba, Haiti, Nicaragua, and Venezuela. However, the parole program has stringent requirements such as having a financial sponsor in the U.S., the ability to pay for flights, and apply from their home country all of which defeat the purpose of fleeing persecution based on the central essence of asylum laws.
In February, a proposed rule, the circumvention of lawful pathways otherwise known as the “asylum transit ban” was submitted for a comment and rule making period. This proposed rule, even criticized by asylum officers, would require that asylum seekers first apply for asylum in another country through their travels or meet a narrow exception for not having done so otherwise they will be flat out denied the opportunity to seek asylum in the U.S. This rule would violate international and U.S. asylum laws as currently written. Despite the highly criticized proposed transit ban rule it is expected that the Administration will implement this new rule after the end of Title 42.
New Announced Immigration Plans
On April 27th, Biden Administration officials announced their plans to help manage migration in light of Title 42, a pandemic health policy set to expire on May 11th. The plan includes new pathways to legal migration and the implementation of border processing rules through new and previously established rules.
Conjunction of Restrictions to Access Asylum
The use of Title 8 of the U.S. Code will return as the default processing for those who do not use a lawful means of entry meaning either use of the CBP One app or possibly if they did not apply for asylum in a country on their way to the U.S (if the new circumvention of lawful pathways rule is implemented). Under Title 8 processing, those without a legal basis to stay in the U.S. will be removed expeditiously, face a 5 year ban from reentry, and criminal prosecution for repeated reentry attempts.
Single adult asylum seekers in expedited removal proceedings who express a fear of return to their home country will have to undergo a credible fear interview (CFI) conducted by an asylum officer. CFI is conducted to establish whether the asylum seeker has a “significant possibility” to be eligible for an asylum claim. The credible fear interview where an asylum seeker is supposed to detail their worst endured fears for fleeing their country will be conducted while in custody of Customs and Border Patrol (CBP) or Immigration and Customs Enforcement (ICE) facilities.
The Administration plans on providing access to counsel via phone lines and privacy booths with an increase of asylum officers to conduct CFIs. In the past, CFIs were conducted in detention centers where attorneys and trained volunteers could assist asylum seekers in person with their CFIs. A positive finding of a CFI would then allow an asylum seeker to continue their asylum case within the U.S. immigration system while a negative finding would allow for a review before an Immigration Judge, and finally be removed if no credible fear was found after all review methods were exhausted. Lack of meaningful access to counsel and conducting CFIs in custody locations that are usually not adequate for disclosing traumatic information are only two issues that will likely come up, among other issues we cannot yet fathom.
A return to Title 8 processing with expedited removal, conducting CFIs in CBP or ICE custody, along with the implementation of the third country asylum transit ban would in essence, all work in conjunction to make accessing the asylum process more strenuous for asylum seekers. Essentially, under these immigration policies, asylum seekers fleeing their home country and daring to embark on a dangerous journey to seek asylum at the southern border will be harshly met with stringent legal barriers to overcome before they can even claim asylum.
Attempt to Increase Legal Pathways to Migrate
The Administration announced the expansion of the CBP One application to encourage this as the proper means for asylum seekers to request an appointment for processing at ports of entry. This is pitched as the “safe, orderly, and humane” way to process asylum seekers. Addressing the much needed increase in appointment slots is only one of the many inequities of the CBP One app as access and technical issues still need to be fixed. Defaulting to theCBP One app as the “correct” way to seek asylum at a port of entry only serves to further erode the current immigration law that deems seeking asylum at ports of entry and within the U.S. lawful.
Another parole program was announced, this time for migrants from El Salvador, Guatemala, Honduras and Colombia. This parole process would allow on a case-by-case basis those who meet vetted criteria to reunite with family in the U.S. and qualify for a work authorization document. In theory parole programs like this sound like an innovative legal pathway, however it is limited to certain migrants who have the means and connections to qualify for such parole programs. This contradicts the spirit of asylum law which was for people fleeing imminent persecution to do so regardless of whether they should first seek help in their home country.
In an unprecedented manner of providing legal pathways to migration, the administration announced establishing Regional Processing Centers (RPCs) in Colombia and Guatemala to begin with. These RPCs staffed with “immigration specialists” would help migrants process if they have a lawful pathway to migrate to not only the United States but also Canada and Spain. However, migrants would need to first make an appointment at an RPC before they can be assessed. Regardless of RPCs in place, people who are fleeing persecution should still have the right to flee and ask for asylum rather than risk waiting on an RPC to assist them in a timely manner. More details on RPCs are needed to analyze how exactly they would function and how they will extend fair and equal access to the migration process.
Concluding Thoughts
It seems that the goal of the Administration is to simultaneously deter migrants from traveling to the border by implementing policies that make it more difficult to access asylum, while also attempting to expand legal pathways for migrating by forcing people to apply from their home countries. Despite these policies and plans, seeking asylum at ports of entry or within the United States is still legal under current U.S. and international law. These plans and policies further seek to dissuade this truth in the name of protecting migrants from having to make dangerous journeys to the United States. If the United States wants to change immigration policy they need to follow our rule and order process and have Congress pass much needed immigration reform, rather than introducing piecemeal changes that give agency officers vast discretion to implement complex policies.