Midnight on May 11 marked the end of Title 42, the U.S. public health law that had been used to expel asylum seekers since the beginning of the coronavirus pandemic emergency. Rumors swirled of a surge of migrants who would cross the U.S. border with Mexico following the end of the measure. But the surge never arrived.
According to the Biden Administration, border encounters actually fell by 50 percent following the end of Title 42. Immigrant rights advocates say this is likely because many migrants and asylum seekers either attempted to enter the country prior to the end of Title 42 or are waiting to see how the rollout of new measures goes.
Title 42 was implemented in 2020 by the Trump Administration, ostensibly to help control the spread of the COVID-19 virus. The measure permitted border agents to rapidly expel migrants from the United States back into Mexico. During its nearly three year run, Title 42 resulted in 2.8 million migrant expulsions under the guise of protecting public health.
Now, the policy has left a scar on the U.S. asylum system. While the Biden Administration has replaced Title 42, with a new, tougher measure known as “Circumvention of Lawful Pathways,” include even stricter requirements for asylum seekers, meaning many will be forced back into dangerous situations.
“The end of Title 42 has in practice meant more of what we have seen before: people continuing to migrate northward and being forced to wait at the U.S.-Mexico border in terrible conditions,” Yael Schacher, an immigration historian and director for the Americas and Europe at Refugees International, tells The Progressive. “But it also has led to increased deportations from the United States and to increased rushed screenings in CBP custody.”
“There are fundamental issues with using technology as the only way to a legal pathway to present yourself at a port of entry.”
Under the new regulations, those seeking asylum can only access the system if they have met specific requirements, including the need to apply using the CBP One app, through which migrants can register for appointments with border officials. Currently the app is only available in three languages, English, Spanish, and Haitian Kreyol, and is plagued by poor software and long wait periods—a source of frustration and hardship for migrants.
But appearing at the border without an appointment can be disastrous, and it is worse for migrants who have passed through multiple countries en route to the United States, who can be barred from applying for asylum due to crossing those borders irregularly.
“There are fundamental issues with using technology as the only way to a legal pathway to present yourself at a port of entry,” Tom Cartwright, an immigration rights activist with Witness At the Border, tells The Progressive. “Because if you present yourself without a CBP One [appointment] you’ll be subject to the transit ban.”
The United States has already started to expel migrants back to Mexico under the new regulations.
New requirements also make it impossible for any migrant to access asylum opportunities if they have passed through a third country en route to the border between the United States and Mexico, essentially reactivating the transit bans established during the Trump Administration. These measures greatly impact poor and marginalized communities, and those fleeing violence, who are not always able to wait in their home countries while seeking asylum.
The new measures create a maze of requirements that asylum seekers are forced to navigate. Those who do not go through this process can be disqualified from applying for asylum.
“Their lives are left in limbo,” Cartwright says. “Getting a CBP One appointment is the only option.”
The requirements are confusing at best, as immigration analyst Dara Lind pointed out in a breakdown for the American Immigration Council. And there is still a lack of clarity for migrants about the regional processing centers that are scheduled to be opened across the region.
“In some ways it makes the idea that you can seek asylum by stepping on U.S. territory no longer true,” Schacher says. “What it’s doing is creating different processing pathways for different groups of people.”
Ahead of the official end of Title 42, the Biden Administration announced it would be launching regional immigration processing centers to ease the burden on the border with Mexico. The first two of these, it was announced, would be opened in Guatemala and Colombia, with assistance from the United Nations High Commissioner for Refugees (UNHCR) and the U.N.’s International Organization for Migration (IOM).
“Individuals will speak to specialists to be screened and if eligible . . . they’ll be referred for refugee resettlement or other lawful pathways, such as parole programs, family reunification or existing labor pathways,” a senior administration official told NBC News.
While details about how the centers will operate are not yet available, the announcement of the Guatemala location came as a surprise to immigration experts in the region.
“Guatemala is a country [that it self pushes people to migrate] and we are also a country that demands asylum and refuge,” Ursula Roldán, an immigration researcher and the director of the Institute for Research on Global and Territorial Dynamics at the Rafael Landívar University in Guatemala City, tells The Progressive. “And the institutional framework is already collapsing.”
Blas Nuñez-Neto, the assistant secretary for border policy and immigration at the U.S. Department of Homeland Security, said in a press conference ahead of Title 42’s end that the Biden Administration was speaking with Guatemalan President Alejandro Giammattei about opening migrant processing centers. But representatives from the Guatemalan government have denied this, saying that Guatemala has not negotiated with Washington and that it will not be a “Safe Third Country” for refugees.
A “Safe Third Country” is a concept that comes from the United Nations’ 1951 Refugee Convention, and states a country must comply with requirements to attend to an asylum seeker, including safety and not being a country that produces refugees. Guatemala does not comply with these requirements.
The Giammattei administration has maintained a cold relationship with Biden, regularly denouncing its intervention in Guatemalan politics. Giammattei has sought to maintain partisan relationships with U.S. Republicans.
For migrants, the lack of clarity surrounding the regional processing centers and U.S. policy has made their journey even more difficult.
“They can’t expect people to take legal pathways that don’t yet exist,” Schacher says.
Even as the Biden Administration reinforces its anti-immigrant regime, experts say the flow of migrants from Guatemala and other parts of Central America are bound to continue.
“Guatemalan migration will always be occurring silently,” Roldán says. “For every one attempt that is achieved there are thousands that are rejected, true, but there is always a success somehow in those who are arriving despite everything.”