Tuesday, March 7, 2023

The New Title 42

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.


The Biden Asylum/Transit Ban (“The New Title 42”)

What is/was Title 42?  

Title 42 is 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 United States.  

What’s the big controversy over Title 42? 

Title 42 has 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. 

Expelled migrants from the US southern border have been sent to wait in 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 either sent 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.)

What is asylum? 

An 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. 

Congress passed the Refugee Act (1980) 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. 

On 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. 

Asylum seekers are supposed to be given a “credible fear interview” by a DHS officer at their port of entry to determine if their asylum claim 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. 

The 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 Status (TPS) or similar statuses are not permanent and do not lead to LPR status or citizenship. 

What is the new “Biden Asylum/Transit Ban” going to do that’s different from Title 42? 

The 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. 

This 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. 

The 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. 

 What problems could this “New Title 42” (Biden Asylum/Transit Ban) cause? 

The proposed Biden 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 another country 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. 

The 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.

The 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! 

To 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. https://immigrationimpact.com/2023/02/22/steps-to-seek-asylum-biden-transit-ban 

What can we do to express our concerns about this proposed asylum/transit ban rule?   

Go to https://immigrationjustice.quorum.us/campaign/44910/ or https://noasylumban.us     

Individuals can 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: 

 “We 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.  

And 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, unfortunately.– Aaron Reichlin-Melnick, Policy Director at the American Immigration Council

Related Articles:

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/ 
Critics Decry New Biden Rule as "Trump's Asylum Ban Under a Different Name  https://truthout.org/articles/critics-decry-new-biden-rule-as-trumps-asylum-ban-under-a-different-name/
How 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/ 
White House Struggles to Explain the Fate of Title 42 https://www.politico.com/news/2023/02/06/public-health-emerdency-title-42-00081390

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
A Pennsylvania Hospital is Attempting to Deport an Undocumented Woman in a Coma https://truthout.org/articles/a-pennsylvania-hospital-is-attempting-to-deport-an-undocumented-woman-in-a-coma/

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/

Abnormal for West to Dodge Nord Stream Explosive Revelations https://enapp.globaltimes.cn/article/1286480



  1. It's appalling how easily and blatantly the US government breaks not only its own laws but those set by international treaty. Of course sadly I expect nothing else from the duopoly. As someone said, 'Republicans are why things always get worse. (so-called) Democrats are why things never get better.

    1. That's a good way of putting it. Another way of saying it, "You can change the tie color, but you won't ever change the suit." That those who are suing to keep Title 42 are enthusiastic about the Biden administration's new and worse version says it all.


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