Biden Is Ending Trump-Era Border Restrictions For Asylum-Seekers

Critics have long accused the US of using the pandemic as an excuse to get around asylum obligations and discourage immigrants from attempting to cross the border.

The Biden administration on Friday announced plans to lift Trump-era border restrictions that were put in place to limit the spread of COVID and forced tens of thousands of immigrants to either return to their home country or wait in dangerous conditions in Mexico.

The government will end the public health order known as Title 42 on May 23.

"Once the Title 42 Order is no longer in place, DHS will process individuals encountered at the border pursuant to Title 8, which is the standard procedure we use to place individuals in removal proceedings," Homeland Security Secretary Alejandro Mayorkas said in a statement. "Nonetheless, we know that smugglers will spread misinformation to take advantage of vulnerable migrants. Let me be clear: those unable to establish a legal basis to remain in the United States will be removed."

With Title 42 ending, the White House has been preparing for multiple scenarios for higher than normal groups of immigrants crossing the border, including organizing a group focused on coordinating plans and operations. On a call with reporters on Tuesday, DHS officials said they have been preparing for scenarios that call for dealing with as many as 18,000 encounters with immigrants at the border a day.

Former president Donald Trump first cited Title 42 as a way to contain the coronavirus by immediately expelling immigrants at the border and blocking them from accessing the US asylum system. Some immigrants are quickly sent back to Mexico, while others are flown back to their home countries. President Joe Biden has continued to enforce the policy while it faces court challenges, expelling people at the border more than 1.7 million times in the process, according to data from Customs and Border Protection.

Immigrants advocates and public health experts have criticized the rationale for Title 42, arguing that it did not help mitigate the spread of COVID-19 and placed vulnerable asylum-seekers in danger. Human Rights First tracked at least 9,886 reports of kidnappings, rape, and other attacks on immigrants blocked in or expelled to Mexico under Title 42 during the Biden administration.

But a pair of court rulings — including one in which a judge ordered the continuation of immigrant children being turned back at the border — along with an already evolving federal response to the pandemic has changed the dynamic. One senior Department of Homeland Security official told BuzzFeed News that the agency had been planning for the end of Title 42.

BuzzFeed News previously reported that DHS officials had been planning to stress to their Mexican counterparts that if Title 42 is no longer in place, the agency will need to return to processing immigrants who cross the border without authorization through normal, pre-COVID practices, which would allow access to asylum and other protections in the US. Prior to Title 42, immigrants apprehended at the border could apply for asylum, a right long guaranteed under US law, and their claims would then be evaluated to determine if they could remain in the country to pursue their cases.

"We have put in place a comprehensive, whole-of-government strategy to manage any potential increase in the number of migrants encountered at our border. We are increasing our capacity to process new arrivals, evaluate asylum requests, and quickly remove those who do not qualify for protection," Mayorkas said in a statement. "We will increase personnel and resources as needed and have already redeployed more than 600 law enforcement officers to the border. We are referring smugglers and certain border crossers for criminal prosecution. Over the next two months, we are putting in place additional, appropriate COVID-19 protocols, including ramping up our vaccination program.

In March, the US Court of Appeals for the District of Columbia Circuit upheld a lower court's ruling allowing the government to continue using Title 42, although the White House was blocked from expelling immigrant families to places where they would likely be persecuted or tortured.

The termination of Title 42 in May will still leave another Trump-era border policy in place known as the Migrant Protection Protocols (MPP), which forces immigrants to wait in dangerous Mexican border cities while a US judge rules in their case.

On a call with reporters, DHS and State Department officials said the Biden administration will enroll immigrants and asylum-seekers in MPP "in much greater numbers" once Title 42 ends. Officials said MPP enrollments have already been increasing, confirming what advocates have been seeing on the ground.

It's unknown how many immigrants previously expelled to Mexico are waiting in the country for their chance to seek asylum, but Martha, a Honduran asylum-seeker who fled with her now three-year-old son, is among them. Martha, who declined to use her full name fearing retaliation for speaking about her experience, said she left Honduras with her son after her partner nearly beat her to death.

But on her way to the US-Mexico border, she was kidnapped by a man she asked for help in the Mexican state of Chiapas. The man took her to an abandoned home and sexually assaulted her in front of her son. She was then kept in the room for 15 days, during which the man would bring other men — some of them uniformed, although Martha said she doesn't remember which agency they were with — to rape and photograph her. Her son would throw himself over her body in an attempt to protect her, Martha said, but the men would hit him.

"It hasn't been easy being here in Mexico, you need to have a lot of courage," Martha said. "There are a lot of people like me here who didn't want to leave their country, but were forced to."

She crossed the US-Mexico border near Ciudad Juarez in November after paying a smuggler $3,000 and was sent back by Border Patrol after spending several days inside cold holding cells. She's since been living at a shelter with her son and has tried finding work. Martha said she's been able to pick up some cleaning jobs at businesses, but has been discriminated against, made fun of, and had her pay withheld because she's an immigrant.

Magdalena, an asylum-seeker from Guatemala, has also been living in a shelter in Ciudad Juarez after being expelled from the US to Mexico last year with her son. She also asked to only be identified by her first name because she fears retaliation.

Magdalena, who speaks Ixil, an indigenous language, has crossed the border twice and was expelled both times under Title 42.

Her family fled Guatemala after gang members tried to extort their repair shop business and they refused to give them what little money they made, Magdalena said. The second time she was expelled with her 10-year-old son to Ciudad Juarez, still wet from crossing the Rio Grande, a dangerous city for immigrants, it was 9 p.m. and she asked the US border officer for help because they had nowhere to go.

"They said it wasn't their problem and this is where I belonged," Magdalena said.

A woman saw the huddled wet pair and took them into her home for the night before driving them to a shelter the next day. The days seem to drag on and Magdalena worries about her son who has a heart condition that makes it hard for him to breathe.

"My hope is that one day soon we'll both be able to cross and be reunited with my family in the United States," Magdalena said. "I don't know how much longer I can wait here."