E.g., 06/18/2024
E.g., 06/18/2024
A Post-Title 42 Vision for Migration Management Comes into Focus
Photo of CBP One App poster at shelter in Reynosa, Mexico
Ariel G. Ruiz Soto

As the U.S. government braces for the dramatically different era—and expected surge in migrant arrivals—that will be ushered in by the imminent lifting of the U.S. pandemic emergency declaration, the Biden administration today unveiled a policy vision that marries the opening of new humanitarian and legal pathways with stiff consequences for those seeking to enter without authorization.

The multiple proposals unveiled by Secretary of State Antony Blinken and Homeland Security Secretary Alejandro Mayorkas add up to a strategy that seeks to incentivize legal, orderly movements and disincentivize unauthorized arrivals, whether at the U.S.-Mexico border or U.S. coastlines.

The administration’s response demonstrates a clear recognition that the end of the Title 42 authority that has allowed the expulsion of more than 3 million unauthorized migrants represents a huge test for border migration management and asylum systems already overtaxed by record southwest border arrivals. “We do expect that encounters at our southern border will increase, as smugglers are seeking to take advantage of this change and are already hard at work spreading disinformation that the border will be open after that. High encounters will place a strain on our entire system, including our dedicated and heroic workforce and our communities,”  Mayorkas said today.

The resulting strategy holds the potential to meet these huge challenges, balancing near-term actions aimed at the U.S.-Mexico border with longer-term regional approaches necessary in a new era of hemispheric migration. However, the approach will succeed only if more robust and speedier border asylum cases decisions that retain fairness can also be put in place. As well, the significant border and asylum processing capacity needs faced by U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) must get the greater support the administration has promised, alongside much-needed resource increases for a U.S. immigration court system struggling with massive backlogs.

Steps to Move to a Post-Title 42 System

The proposals unveiled by the Biden administration on April 27, 2023, break down into two main categories:

Building Lawful Pathways

  • Setting up regional processing centers, initially in Guatemala and Colombia and with other locations to follow, allowing individuals from the region to be screened for entry via legal pathways to the United States, Canada, and Spain.
  • Streamlining family reunification processes for Cubans and Haitians and expanding processes to Salvadorans, Hondurans, Guatemalans, and Colombians.
  • Doubling refugee resettlement from the region.
  • Increasing the number of CBP One appointments per day.

Imposing Consequences

  • Cubans, Haitians, Nicaraguans, and Venezuelans arriving irregularly will continue to be removed to Mexico.
  • DHS will expand expedited removals including repatriation flights, removals of families, expanded alternative to detention (ATD) program, and detention for single adults.
  • Cubans and Haitians interdicted at sea will no longer be eligible for the parole programs.
  • Agreement between the United States, Panama, and Colombia to stop migration through the Darién Gap.

Remaking Asylum at the Border

The administration’s post-Title 42 strategy comes against the backdrop of record-breaking migrant encounters at the southwest border—more than 2.3 million in fiscal year (FY) 2022. The growing numbers of nationalities, fraught diplomatic relations with countries representing large shares of arriving asylum seekers, and complex migration motivations that make it increasingly difficult to assess protection claims all have complicated present-day responses.

A border asylum rule that the administration unveiled in January—and Mayorkas announced would be implemented after May 11—seeks to incentivize orderly arrivals at ports of entry and disincentivize crossings between ports of entry for the purpose of seeking asylum. The rule is central to the overall strategy.

The rule’s success—and its ability to begin to address the increased flows while also preserving meaningful access to asylum—will turn largely on how it is implemented and whether related staffing and infrastructure needs are met. Many human-rights and immigrant advocates have strongly criticized the rule, viewing it as an attempt to shut down asylum rather than redirect it.

Assessing Post-Title 42 Readiness

To assess the government’s readiness for the post-Title 42 future, a team of Migration Policy Institute (MPI) analysts recently completed a month of field visits across the U.S.-Mexico border. They interviewed senior CBP officials and toured facilities in six of nine border sectors that accounted for 85 percent of encounters during the past fiscal year. They also met with state and local government and NGO leaders and conducted similar meetings in four Mexican border cities.

The researchers found that overall, in response to unprecedented migrant arrivals and despite systemic breakdowns in processes carried out by partner agencies, CBP has made solid inroads to properly screen, vet, and process migrants—with NGO and local government assistance to facilitate onward movement to destinations throughout the United States.

At the same time, these border processing successes do not address important shortcomings that afflict the asylum system overall, the limitations and unintended consequences of the CBP One app used to book interviews with CBP officers at ports of entry, and inadequate capacity and coordination with functionally related agencies such as ICE and USCIS. The greatest shortcoming has been the inability to initially process but then also decide asylum applications, encouraging further unauthorized migration and leaving asylum seekers in an uncertain status for years.

Flexibility and Limitations in Case Processing Now and Ahead

In processing asylum seekers and others encountered crossing without authorization, Border Patrol agents consider the individual’s nationality, family composition, and criminal history—any of which can trigger different courses of action and outcomes. Under Title 42, the Border Patrol can expel migrants in a matter of hours. For cases not processed under Title 42, the agency uses its standard Title 8 authority, which entails placing migrants in removal proceedings, where those requesting protection are screened by trained asylum officers for their eligibility to make an asylum claim.

However, individual and border-wide outcomes under Title 8 are often arbitrary because they are dictated by Border Patrol capacity to detain migrants, USCIS capacity to conduct credible fear interviews, and ICE capacity to conduct removals. Facing capacity constraints, the Border Patrol processes migrants under the most expeditious dispositions. For instance, when total daily encounters surpassed 6,000 in FY 2022, agents were authorized to temporarily use humanitarian parole. With the use of parole currently suspended pending litigation, most Border Patrol dispositions are giving intercepted migrants a Notice to Appear (NTA) at an immigration court in the U.S. interior, often years later.

The post-Title 42 plans to increase expedited removal that the administration highlighted will place even more pressure on insufficient ICE and USCIS resources. Maintaining migrant encounters as much below Border Patrol capacity limits as possible while increasing capacity for ICE and USCIS are fundamental to transitioning from Title 42 practices, as the resource surges that were outlined suggest.

Ports of entry are also constrained in their ability to scale up beyond a fraction of their overall border operations because of space and staffing limitations that are even more severe than those experienced by the Border Patrol. Nonetheless, to the extent possible, Office of Field Operations (OFO) officers at ports of entry have adapted to accommodate the daily processing of Title 42 exemptions through the CBP One app. Some locations have transformed existing spaces for processing, while others use temporary tent facilities adjacent to the ports. To meet the new border asylum rule’s incentivization for asylum seekers to present to a port of entry will require major infrastructure adjustments, increased personnel, and training that allow for facilitating regular trade and travel alongside the intake and resulting screening needed for humanitarian flows.

Given these built-in constraints, the administration is attempting to fix the plane while flying it—its only realistic option under the circumstances. With overwhelming migrant arrivals, the focus on processing has and will likely continue to be all-consuming. But for border enforcement to ultimately succeed in a post-Title 42 world, similar levels of effort must be directed at deciding asylum cases, rather than adding them to immigration court caseloads that will not be decided for years and are, in the meantime, incentivizing people to apply for asylum even if they have only modest or nonexistent grounds.

Establish a Last-In, First-Decided Policy Using the Asylum Officer Rule 

If post-Title 42 asylum cases are added to the vast backlog of 2 million cases that already exist in the immigration courts, where most of these cases are decided as part of the overall removal hearing, the administration’s new border rule will fail. It takes four to nine years to decide an asylum case. Such long wait times delay critical protections for those who qualify for them, perpetuate incentives for filing non-meritorious claims, and preclude—as a practical matter—removal of those whose claims are denied.

In addition to the measures announced today, fixing the broken asylum system requires prioritizing border asylum cases under the procedures and timetable set out in the asylum officer rule that the administration began implementing in June 2022. The rule authorizes USCIS Asylum Division officers, who already handle the credible-fear interview determination, to decide the border asylum claim in full rather than sending the case to the immigration courts, a branch of the Justice Department. The role of immigration judges, under the rule, is then to review asylum officer denials on an expedited timeline. The objective is to slow the growth of the courts’ case backlog with fair but timely measures that enable asylum decision-making in months, not years.

The rule has been used to process fewer than 4,000 cases and has now been paused entirely, with the administration citing competing demands in advance of ending Title 42. Returning to the asylum officer rule would be key to helping achieve the robust asylum processing system that is central to the administration’s overall post-Title 42 strategy.

A last-in, first-decided strategy requires implementation through a full-scale reallocation of asylum officers to both credible fear screening and to deciding new cases until they are completed on timely schedules. Such a policy would temporarily disadvantage the existing USCIS affirmative asylum caseload, but it represents an essential reset that will send new signals that discourage unfounded claims and opportunistic flows by providing protection to those who are eligible and returning those who are not. Therein lies the deterrence that is missing today.

To succeed, the strategy must also build in legal services and case management support. Both have proven to dramatically increase the efficiency of the asylum adjudication system and are essential characteristics of fairness in building credibility for its outcomes.

There are other key elements the administration should undertake, not least:

  • Much-needed fixes to the CBP One app, which asylum seekers must use to seek an asylum appointment. Making the app a successful component of the incentives-disincentives strategy requires addressing its significant limitations, which include a limited number of languages, frequent technology breakdowns, and an inability to accommodate larger families. Moreover, the app cannot distinguish or prioritize the most pressing cases.  
  • The piloting of multiagency border processing facilities and practices that would co-locate CBP, USCIS, and ICE to promote better coordination of their respective functions. Other federal actors, including the Department of Health and Human Services (HHS), which is responsible for the care of unaccompanied minors, and NGOs that have become vital to border processing should also be onsite. 
  • Formalize the relationships between NGOs and CBP in border cities and continue to allocate funds towards NGOs integration efforts once migrants are released from CBP custody.
  • For the newly announced regional processing centers, which will be established in countries including Colombia and Guatemala, to reach the most vulnerable populations and scale, they must be located strategically across the Americas. The centers, which will allow individuals from the region to be screened for entry via legal pathways to the United States, Canada, and Spain, must be linked to networks of local NGOs that are important conduits of information for migrants. Beyond ensuring necessary staffing and infrastructure, the involved governments will need to ensure consistent collaboration and buy-in from regional governments for orderly operations and public support.

A Post-Title 42 Strategy That Can Work

The administration’s newly unveiled strategy represents a recognition that stopgap, ad hoc measures focused largely on the U.S.-Mexico border cannot succeed in the face of already record encounters of asylum seekers and other migrants that are only likely to increase in the near term amid the messy transition from the pandemic-era expulsions policy to a new reality.

The policies that have been announced to expand access to legal pathways, impose significant consequences for those who do not follow the rules, and surge new resources and operational changes to the border asylum system are building blocks towards border management and asylum systems that can meet changing migration realities. They represent an ambitious but achievable package of near- and longer-term policies that, if implemented effectively, can promote durable border control and responses to profound humanitarian needs in the region.

While there are deeper hemispheric solutions required to address what has become vast movement through the Americas, the regional initiatives that were unveiled today by the administration and the measures that seek to establish orderly, fair policies for management of the U.S.-Mexico border appear likely to address many of the challenges that come from the need to lift a Title 42 policy that was sweeping in its effects but could not represent lasting policy answers for the United States.