The New Title 42
info gathered by C.A. Matthews
Editor's note: From the "Just when you hoped things would get better for ordinary people" department comes news of what the Biden Administration wants to replace Trump's infamous "Title 42" deportation program with, and yes, it's fairly horrendous.
In my day job as an immigration advocate, I have to explain what this new "Asylum/Transit Ban" is to a group of college students in a Powerpoint presentation. Here are my notes--along with a call for action. Everyone who reads this should send in a comment by the March 27th deadline and pass the link along. Lives are at stake.
Biden Asylum/Transit Ban (“The New Title 42”)
is/was Title 42?
a public health and welfare statute enacted in 1944 which gives the
Centers for Disease Control and Prevention the authority to determine
whether a communicable disease in a foreign country poses a danger of
spreading in the US. If the CDC finds that a disease does pose a
threat, it can, with approval from the president, temporarily
prohibit people or property from entering the country to avert
danger. It was enacted at the beginning of the COVID-19 pandemic in
March 2020. Title
42 is set to expire on May 11, 2023, when the Biden administration
states it will declare the pandemic officially over within the
the big controversy over Title 42?
been used to prevent immigrants from entering the US and claiming
asylum, even though all persons entering the country must show proof
of COVID-19 vaccination. Throwing up policy roadblocks to prevent
people from entering the country and claiming asylum goes against
current US asylum law. There have been 2.5 million expulsions under
Title 42. A pattern of discrimination against asylum seekers of
certain nationalities, ethnicities, races, indigenous peoples, and
LGBTQ+ persons has been noted.
migrants from the US southern border have
been sent to
the northern region of Mexico under the January 2019 MPP
(Migrant Protection Protocols) or “Remain in Mexico”.
Mexico will take only Department of Homeland Security expulsions of
nationals of Mexico, Honduras, El Salvador, Guatemala, Nicaragua,
Haiti, Cuba, and Venezuela. All others are
back to their country of origin or allowed to proceed through a
“normal asylum procedure” in the US.
(Editor's note: Notice that the more melanin in your skin, the more likely your right to claim asylum in the US will be thwarted. And where these folks are being told to wait in northern Mexico is far from safe and pleasant. Read the latest travel advisory from the US Department of State on how very dangerous that part of the world is. Many Mexican states are labeled by the US government as "Do not travel because of crime and kidnapping." This recent story about kidnapped and slain American medical tourists proves it. Photo above: US Customs and Border Patrol agent whipping a Haitian asylum seeker at the southern border last year.)
asylum seeker meets the same legal standard as a refugee. An
individual can claim asylum because of past persecution or fear of
future persecution because of race, religion, nationality, political
opinion, or membership in a particular social group.
to bring the US into compliance with its international obligations
under the United
Nations 1951 Refugee Convention and its 1967 Protocol,
which prohibits returning refugees to any country where their lives or
freedom would be threatened.
a ruling on Title 42, the 9th U.S. Circuit Court of Appeals pointed
out that the Refugee Act is very specific about the circumstances
under which the government can deny asylum for failure to apply in a
transit country. Under the act’s “safe third country” provision
this scenario can happen only if the transit country is safe and has
both a robust asylum system and a formal treaty with the United
States agreeing to safe third-country status.
seekers are supposed to be given a “credible fear interview” by a
DHS officer at their port of entry to determine if their asylum
has validity. If the officer says the
claim of asylum
is valid, the person can remain in the US while they await their
court appearance to present their case before an immigration judge.
The Biden administration’s proposed rule will narrow this procedure
down to a “reasonable fear interview,” which has a much higher
denial rate. If the officer denies the asylum claim, the migrant will
be deported. They can appeal this denial, but most do not understand
the appeal process and have no access to legal assistance.
importance of winning an asylum claim is that it is often the only
path most immigrants can take to obtain a Legal Permanent Resident (LPR
or “Green Card”)
status and eventually become a US citizen. Temporary Protective
are not permanent and do not lead to LPR status or citizenship.
is the new “Biden Asylum/Transit Ban” going to do that’s
different from Title 42?
Biden Administration on February 21, 2023, announced a crackdown on
those seeking asylum in the US. The proposed rule would see the rapid
deportation of anyone who has not first applied for asylum en route
to the US southern border through the use of a smartphone
app called “CBP One.” CBP One has been plagued with significant technical problems, preventing many from making “asylum
appointments” (two weeks or more out) and has raised serious equity
and privacy concerns. The app takes a very long time to fill out and
has been known to crash, and the main text is currently available
only in Spanish and Haitian Creole, with English only error messages.
It cannot be accessed from a
computer, and the user must first use an
all-English web site, “Log-In.gov,” to set up an account
and have their identity verified before accessing and applying for a an asylum appointment via CBP One.
proposed rule has been condemned by immigration rights groups, which
claim it runs counter to the “humane immigration system” that
Biden promised while campaigning for the White House. Some have
called it a “hybrid of the Trump transit bans.” It clearly
discriminates against those asylum seekers who are too poor to own a
smartphone, have no stable internet accessibility, lack computer
device skills, or are illiterate.
Trump Administration proposed prohibiting asylum for migrants who
didn’t first apply for asylum (and been denied) in a country of
transit before reaching the US southern border and entering through a
port of entry. The court struck down this policy for violating the
1980 Refugee Act, which guarantees the right of all migrants who
reach the US to apply for asylum. The Refugee Act expressly permits
asylum seekers to access protection anywhere along the border—not
just ports of entry—and it does not require appointments to be made
in advance on a smartphone only app to request asylum.
problems could this “New Title 42” (Biden Asylum/Transit Ban)
Asylum/Transit Ban would create a new asylum
restriction for adults and families who present themselves
unannounced to US border officials at the southern border. If they have traveled
through another country or countries on their way to the US, they would have to provide proof that they applied for asylum in one of the transit countries
and been denied first. (One
lawyer on a webinar noted that a
denial of an asylum application in
could be used against the person
applying for asylum in the US, possibly in violation of the Fifth
Amendment.) The Biden administration insists that every asylum
seeker has the power to avoid the ban by sticking to what it calls
“lawful pathways,” implying that it’s unlawful to
seek asylum if you enter the United States between ports of entry (enter without inspection),
which goes against the Refugee Act.
rule also creates a whole new convoluted procedure to determine
whether and how the ban applies. For instance, if you fly into the
US, this proposed rule will not apply to you. If you come across the
border from Canada, this rule does not apply. Those who have received
an advanced parole (and have a US sponsor) or come into the US under
a work, student, or tourist visa will not be subject to this rule.
The rule only applies to persons who have physically crossed into the
United States at the southern border.
biggest problems arise from the so-called “lawful pathways” that
don’t really exist for many people. The
process migrants could be shunted into instead is tantamount to a
near-complete asylum ban when one considers how the process is
intended to work and how it interacts with systems on the ground. And
the rule doesn’t even attempt to explain these discrepancies!
get a feel for the absurdity of the proposed regulation, read How
to Seek Asylum In the United States (Under the Biden Administration’s
Proposed Asylum Transit Ban), In 12 Not-At-All-Easy Steps.
can we do to express our concerns about this proposed asylum/transit
Go to https://immigrationjustice.quorum.us/campaign/44910/
make a comment to the USCIS (US Citizenship and Immigration Service) about the proposed regulation.
Only 30 days were given for public comments to be made (as compared
to the usual 60 day comment period). The comment deadline is March
27, so write your comment soon and share the link with others.
Learn more about the Biden Asylum/Transit Ban at
Last but not least editor's note: If you like to know more about what it's like to be an asylum seeker trying to navigate the complex US immigration system, watch the documentary Seeking Asylum. The filmmakers met a mother and her children fleeing a violent situation and trying to reunite with her husband who was working in the United States. More on how you can view it at its web site https://www.seekingasylumfilm.com/
Quote of the Week:
have spent the past decade pouring money into the border-security
apparatus in an effort to deter asylum seekers. It hasn’t worked because
we’ve spent all of that money on border security and we’ve spent almost
none on actually building a functional and working
humanitarian-protection system on the back end.
now we’ve got a two-million-case backlog, more than six hundred
thousand asylum applications with U.S. Citizenship and Immigration
Services, and three million people on ICE’s non-detained docket. This is
not something that you’re going to be able to fix overnight. About the
only thing the Biden Administration and Congress could do right now is
just declare immigration bankruptcy and start all over again, and have
amnesty, but there isn’t the political will for that right now,
– Aaron Reichlin-Melnick, Policy Director at the American Immigration Council
CBP One Is Riddled With Flaws That Make the App Inaccessible to Many Asylum Seekers https://immigrationimpact.com/2023/02/28/cbp-one-app-flaws-asylum-seekers/
to Seek Asylum In the United States (Under the Biden Administration’s
Proposed Asylum Transit Ban), In 12 Not-At-All-Easy Steps https://immigrationimpact.com/2023/02/22/steps-to-seek-asylum-biden-transit-ban
Biden Wants to End Exploitation of Migrant Children, But His New Asylum Policy Could Make It Worse https://immigrationimpact.com/2023/02/27/labor-exploitation-migrant-children-biden-asylum-policy/
From Still Awaiting Court Dates, Migrants Suffer the Effects of ‘Band-Aid’ Fixes to Our Broken Immigration System https://immigrationimpact.com/2023/02/08/awaiting-court-dates-notice-to-appear
Other interesting articles I've read this week about the Ohio train derailments (there's now two of them!) and the quest for peace in the world:
Norfolk Southern Cargo Train Derailed Near Springfield (Ohio) https://www.dispatch.com/story/news/2023/03/04/cargo-train-derails-springfield-clark-county-ohio/69972311007/
East Palestine, Ohio And The Oligarchy https://popularresistance.org/east-palestine-ohio-and-the-oligarchy/
Angry residents confront EPA and railroad officials at East Palestine, Ohio town hall https://www.wsws.org/en/articles/2023/03/04/rail-m04.html
Norfolk Southern Used Sick Leave as a Bargaining Chip to Erode Safety, Union Says https://truthout.org/articles/norfolk-southern-used-sick-leave-as-bargaining-chip-to-erode-safety-union-says/
"Too Many Holes": Rail Workers Say Buttigieg Plan of Action is Not Enough https://popularresistance.org/too-many-holes-rail-workers-say-buttigieg-plan-of-action-is-not-enough/
East Palestine Residents Confront Norfolk Southern at Town Hall Meeting https://truthout.org/articles/east-palestine-residents-confront-norfolk-southern-at-town-hall-meeting/
Rail Workers Demand Immediate Action from Lawmakers to Rein in Rail Industry https://truthout.org/articles/rail-workers-demand-immediate-action-from-lawmakers-to-rein-in-rail-industry/
Exposure to Chevron's Climate Friendly Fuel May Pose Severe Risk of Cancer https://truthout.org/articles/exposure-to-chevrons-climate-friendly-fuel-may-pose-severe-risk-of-cancer/
The House's "Horrors of Socialism" Resolution Spurred by the Capitalist Class's Greatest Fear https://indypendent.org/2023/02/the-houses-horrors-of-socialism-resolution-spurred-by-the-capitalist-classs-greatest-fear/
China's Peace Plan for Ukraine https://scheerpost.com/2023/03/03/chinas-peace-plan-for-ukraine/
Major US Outlets Found Hersh's Nord Stream Scoop Too Hot to Handle https://scheerpost.com/2023/03/04/major-us-outlets-found-hershs-nord-stream-scoop-too-hot-to-handle/