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U.S. Border Asylum Policy Enters New Territory Post-Title 42

May 26, 2023 (2 min read)

Muzaffar Chishti, Kathleen Bush-Joseph, MPI, May 25, 2023

"U.S. border enforcement finds itself in an uncertain new era now that the pandemic-era Title 42 border expulsions policy has been lifted. The chaos predicted to occur in the days after the May 11 end of the public-health emergency declaration did not immediately materialize. The unexpected dip in arrivals could be seen as a sign of a new normal, but may also be a temporary pause before a renewed uptick. Strong migration push factors through much of the Western Hemisphere and beyond may mean that there is continued pressure on the U.S.-Mexico border in the months ahead.

In response to the end of a Title 42 order that resulted in more than 2.8 million expulsions at the U.S.-Mexico border, the Biden administration has issued a slew of fresh policies to bolster a border enforcement regime developed in the 1990s—mostly to halt unauthorized economic migrants from Mexico. Today, that regime is tasked with managing an historic level of asylum seekers and other arrivals from an increasing number of countries across the planet. The administration is hoping to funnel migrants in orderly fashion through official ports of entry, yet the government's finite processing capacity means many are receiving only initial screenings and then are being allowing into the United States to appear at immigration proceedings, frequently many years in the future. Meanwhile, migrants who cross without authorization between ports of entry now face new hurdles that in some ways are more consequential than those of Title 42, which prevented access to asylum.

To accomplish its goals, the government is racing to scale up its capacity for processing new arrivals by surging resources to the border at the expense of immigration adjudications elsewhere. The new process also depends on cooperation from other countries—particularly Mexico— to accept returned migrants, including those from places such as Cuba and Venezuela where U.S. diplomatic relations are strained. Looming over the changes is the specter of ongoing litigation, which could dramatically upset the new process. And finally, political pressures are likely to put the administration in a delicate position, with significant criticism coming from within President Joe Biden's own party. This article analyzes the new immigration landscape and ramifications nationwide. ...

... As the new reality unfolds, the world is watching. The European Union faces its own challenges with high arrivals and backlogged systems and has at times considered whether migrants might be made to submit asylum applications en route, before they reach its shores. Other countries such as Canada are conducting reviews of their immigration systems, and are looking to the United States for workable policies to replicate. Perhaps mostly importantly, migrants around the world, their family members in the United States, and smuggling networks are also watching to see whether the new policies will make it easier or harder to enter the United States."