As the Title 42 pandemic-era rule ended at midnight on Thursday, Alejandro Mayorkas, the secretary of homeland security and a former Cuban refugee, issued a stern warning to would-be migrants, saying: “People who arrive at the border without using a lawful pathway will be presumed ineligible for asylum.”
In many ways, Mayorkas’s statement directly contradicted some of the promises Joe Biden made as a candidate during the 2020 presidential election. Then Biden had pledged to dismantle Donald Trump’s hardline immigration agenda, calling the numerous restrictions his rival enacted to shut off access to the US asylum system “cruel”.
After taking office, Biden reversed some of Trump’s border policies, including a program that required asylum-seekers to wait in dangerous Mexican border cities while their cases were reviewed by US courts.
But for more than a year, Biden kept, and defended in court, Trump’s most sweeping border restriction: the Title 42 emergency order that allowed agents to cite the Covid-19 pandemic to quickly expel migrants without hearing asylum claims.
The Biden administration in 2022 tried to phase out Title 42, but was blocked by a lawsuit filed by Republicans in 19 states. By the time it ended – due to the expiration of the Covid-19 public health emergency – Title 42 had been used to expel migrants over 2.7m times from the US southern border, according to government statistics.
But Biden is now replacing Title 42 with an arguably tougher, more restrictive policy. His administration on Friday started implementing a rule barring migrants from asylum if they don’t request refugee status in another country before entering the US.
Advocates suggested that such a restriction mimics two Trump-era policies known as the “entry” and “transit” asylum bans which were consequently blocked by courts. As a result, the new restrictive border control has already been challenged by the American Civil Liberties Union and other immigrants’ rights groups in federal court.
“This new rule is no less illegal or harmful. It will effectively eliminate asylum for nearly all non-Mexican asylum seekers who enter between designated ports of entry, and even for those who present at a port without first securing an appointment,” the complaint says.
Thousands of migrants anticipating the end of Title 42 crossed into the US in record numbers this week along the 2,000-mile border with Mexico. They gathered on the banks of the Rio Grande and gates near the border wall, waiting for their turn to be let into US soil.
Nestor Quintero, who crossed the US border near El Paso, Texas, only to be expelled to Tijuana, recently returned to Ciudad Juárez, scared that once Title 42 was lifted, his chances to give his daughters a “better and safer life” would be diminished.
Unable to secure an appointment using a government cellphone app known as CBP One for over a month, the Venezuelan decided to surrender himself along with his family at gate 47 at the border wall in El Paso last week.
“We were detained for six days and then were given documents by the [immigration] officials,” said Quintero, 35, who left Venezuela after an opposition politician he had worked for disappeared.
“We have a [court] date in September this year, but now we only worry about eating. We have no money and we are hungry.”
Biden’s asylum restriction, announced the same day Quintero’s family was released from border patrol custody, could have led to them being deported and banned from entering the US for five years. If they attempted to re-enter the US, they would have faced criminal prosecution.
One of the only ways to avoid facing deportation under the strict asylum rule is to secure an appointment to enter the US through the government app. In its first four months, over 83,000 individuals have successfully scheduled an appointment through CBP One, a DHS official told the Guardian.
CBP recently announced changes to the app, increasing the number of appointments available to approximately 1,000 a day from 740. That could be an option for some of the estimated 60,000 migrants who the border patrol chief, Raul Ortiz, said are waiting in northern Mexico, but it is unclear how many are willing to wait.
The number of migrants stranded in Mexico could also increase further due to the new policies. The Mexican government has agreed to continue accepting tens of thousands of Cuban, Haitian, Nicaraguan and Venezuelan deportees from the US.
Shelter directors in Mexico told the Guardian they are at capacity.
“This agreement means that more than 360,000 people could come to a country that doesn’t have a federal or state system to help everyone,” said Rafael Velásquez, the country director for Mexico at the International Refugee Committee.
In its effort to dissuade migrants from travelling north, the Biden administration has also partnered with the Colombian and Panamanian governments to create regional processing centers to screen migrants who could be eligible to enter the US legally. The White House is also allowing up to 30,000 migrants from Cuba, Haiti, Nicaragua and Venezuela to fly to the US each month, as long as they have American financial supporters.
Just before Mayorkas’s statement on the termination of Title 42, a federal judge in Florida blocked a Biden policy of expediting the release of some migrants to prevent overcrowding in porder patrol facilities. The agency said it had nearly 25,000 migrants in custody on Thursday. Immigration and Customs Enforcement (Ice) said it will increase the number of beds by several thousand.
On the evening of 11 May, Quintero, who along with his wife and daughters were released from a detention center in El Paso, reached out to the Venezuelan relative he left behind in Ciudad Juárez, worried about his whereabouts.
“He was sad because he is now alone in Mexico,” said Quintero, whose final destination is Chicago, but his court appointment is in Texas. “He thinks he got deported because he came by himself, with no children, to the US.”
