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Biden administration finalizes plans for end of Title 42

U.S. Border Patrol agents organize a group of families between primary and secondary border fences near San Diego May 9, 2023. Large numbers of migrants gathered at the border as the United States prepared to lift COVID-19 era Title 42 restrictions that have blocked migrants at the U.S.-Mexico border from seeking asylum since 2020. (OSV News photo/Mike Blake, Reuters)

WASHINGTON (OSV News) — The Biden administration May 10 finalized its plans for the end of Title 42, scheduled to expire the following day.

Title 42 is a part of federal U.S. public health law granting the federal government some authority to implement emergency action to prevent the spread of contagious diseases by prohibiting some migrants from entry.

Then-President Donald Trump implemented the policy in 2020 at the start of the COVID-19 pandemic, but the move was seen as part of his administration’s broader attempts to reduce migration. The use of Title 42 to block migrants at the southern border from entering the U.S. was criticized by some public health experts, who argued it was politically motivated rather than evidence-based virus mitigation.

Since its 2020 implementation, Title 42 has been invoked more than 2.7 million times to expel migrants, including those seeking asylum, according to U.S. Customs and Border Protection data.

The new rules presume individuals to be ineligible for asylum in most cases if they cross the border illegally or fail to first apply for safe harbor in another nation, similar to a Trump-era policy dubbed the “transit ban.” Migrants will be asked to use a mobile app to apply for asylum, and some immigration advocates have raised concerns about data privacy and whether the app is accessible to migrants and asylum-seekers.

The Biden administration also will expand expedited removal processes under Title 8, which is part of the U.S. code addressing immigration law.

Lawmakers in both parties have expressed concerns that the end of Title 42 will lead to an increase in individuals seeking entry into the United States. But the Biden administration has criticized Congress for not taking action on immigration policy.

Secretary of Homeland Security Alejandro Mayorkas told reporters at a May 10 press conference that “our overall approach is to build lawful pathways for people to come to the United States and to impose tougher consequences on those who choose not to use those pathways.”

“We are taking this approach within the constraints of a broken immigration system that Congress has not fixed for more than two decades, and without the resources we need — personnel, facilities, transportation — and others that we have requested of Congress and that we were not given,” he said.

“We are a nation of immigrants,” Mayorkas added. “We are also a nation of laws. Our immigration laws today are outdated. The solutions we are implementing are the best available within our current legal authority, but they are short-term solutions to a decade’s old problem.”

J. Kevin Appleby, interim executive director of the Center for Migration Studies, said in a statement that Title 42 “has been used by two administrations to deny asylum protection to an untold number of asylum seekers who deserved U.S. protection.”

“It has placed them in dangerous situations and has led to unnecessary human suffering,” he said. “Good riddance.”

Appleby, a former adviser on migration policy for the U.S. bishops, said that “however, asylum seekers now will face new restrictions on their rights, including the imposition of a transit ban which could limit, if not effectively eliminate, the right to asylum in this country.”

“These new barriers to asylum betray our values as a nation, which was built upon the protection of human rights,” Appleby said. “The administration’s creation of legal pathways for migration and regional processing centers is laudable, but they are not a substitute for a fair and workable asylum system.”

Appleby argued the nation is “entering a frightening new stage in our history, in which our reputation as a safe haven for the world’s persecuted is at risk.”

“Nations will no longer follow our example as a protector of human rights, but will follow it as a justification to deploy their own deterrence policies,” he said. “Over the long-term, these policies will not work, as they do not address the underlying global forces driving migration or repair a broken U.S. immigration system. Congress must take responsibility and work to pass immigration reform. It can no longer wait for the next election.”

Kate Scanlon is a national reporter for OSV News covering Washington. Follow her on Twitter @kgscanlon.

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