Policy Changes and Legal Rulings Underscore Pressure on Biden to End Title 42

The Biden administration has announced new rules pertaining to asylum claims in a move that is set to overhaul the asylum system in the United States. The new rule, announced this week by the administration, seeks to force certain asylum claims to be heard at a faster pace and will shift much of the process towards asylum officers and away from courts. The announcement is just the latest chapter in the ongoing saga of policy changes and legal rulings affecting migrants at the southern border of the United States. 

The new rule would allow asylum officers with U.S. Citizenship and Immigration Services (USCIS) to consider the merits of an asylum case following a determination that the individual has a credible fear of persecution or harm in their home country. Under this new rule, individuals who are denied by USCIS can request a review of the finding by an immigration judge, with the goal of a final decision by the judge being issued within 90 days after the proceedings begin.

The regulation largely targets asylum claims arising at the southern border, where migrants often present asylum claims to border officials and ask for protection. While the administration claims the new rule will allow for asylum claims to move forward faster, advocates fear the change in policy will lessen legal protections for asylum-seekers. 

"It will help reduce the burden on our immigration courts, protect the rights of those fleeing persecution and violence, and enable immigration judges to issue removal orders when appropriate," said Attorney General Merrick Garland in a statement.

However, advocates have noted that the new process will undermine due process as it does not provide individuals enough time to seek legal representation, an essential component of presenting a strong asylum claim. 

Richard Caldarone, with Tahirih Justice Center, spoke with the L.A. Times and was skeptical of the move. “Survivors of trauma will not be able to recite what happened to them 72 hours after arriving in a safe place to a government official,” he said. “Given the emphasis that DHS has placed on speed for asylum seekers, this will be like the former process — designed in a way that will systematically fail to elicit people’s best asylum claims.”

Other advocates noted that imposing a specific timeline for the completion of cases stands in direct conflict with obtaining accurate asylum decisions and will ultimately lead to improper or incorrect decisions. 

Many remain concerned about the Biden administration's ongoing use of the controversial Title 42 policy and expedited removal, a process in which individuals at the border are removed without going through full immigration proceedings.

The new rule is set to go into effect in late May, with the agency taking public comments and modifications during the interim period. The rule will not apply to unaccompanied children and is set to be implemented in a staggered manner, starting with a limited population before applying to a broader group.

Recent Court Rulings

The news comes after a number of recent legal rulings pertaining to asylum and COVID-19 protections at the border. One ruling, issued on March 4th by a federal appeals court, held that the United States could continue to expel migrants at the border under COVID-issued public health orders but not to countries where they may face persecution. The three-judge panel, who issued a unanimous verdict, cited “stomach-churning evidence” that the United States had deported individuals to countries where they may face violence, torture, and even death.

While the ruling upholds a bar to asylum for migrants, it allows them to seek “withholding of removal” and protection under the United Nations Convention Against Torture in order to avoid being deported back to countries where they may face persecution or harm.

The ruling included a sharp critique of the Title 42 rules used by the Biden administration to remove hundreds of thousands of individuals seeking protection at the border. Judge Justin Walker, a Trump appointee who wrote the unanimous ruling, noted that it was “far from clear that the CDC order serves any purpose” with respect to public health. In addition, he questioned the complete lack of evidence in the ruling with respect to the efficacy of Title 42.  “We are not cavalier about the risks of COVID-19. And we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the Order. But there are none.”

Since March 2020, the United States has expelled migrants more than 1.6 million times at the Mexico border, denying them the chance to seek protection in the United States. The ruling added to mounting pressure on the administration to end the use of the Title 42 policy and restore basic protections required by international law. 

Advocates hailed the ruling as at least a partial victory. “Today’s decision did not strike down Title 42 but created legal and procedural safeguards to protect immigrants. Moving forward, immigrants cannot be deported without an assessment of whether they will be safe," said Ivan Espinoza-Madrigal, executive director of Lawyers for Civil Rights.

In an almost simultaneous ruling, a federal judge in a different case ruled against the Biden administration's decision to exempt unaccompanied migrant children from restrictions related to Title 42 at the border, siding with the State of Texas that brought the lawsuit. Despite the ruling, the Biden administration announced shortly after that unaccompanied minor children would continue to be exempt from Title 42. 

A statement issued by the CDC on March 12th stated: "In the current termination, CDC addresses the court's concerns and has determined, after considering current public health conditions and recent developments, that expulsion of unaccompanied noncitizen children is not warranted to protect the public health."

The CDC’s announcement was met with a lukewarm reception from advocates, just as the recent asylum rule change, with many noting that the administration can and should do more to protect migrants seeking protection at the border. Chief among the demands from advocates and elected officials is the call to end the use of the Title 42 policy completely. “We are deeply disappointed in the Biden Administration's decision to maintain Title 42," said a joint statement authored by Senator Chuck Schumer from New York, along with Sens. Bob Menendez of New Jersey and Alex Padilla of California. "While we recognize that the Administration made the right choice to prevent unaccompanied children from being expelled, it is wrong that they made the decision to continue sending families with minor children back to persecution and torture."