Reflections on a Changing Immigration Landscape: Title 42 and the “Asylum Ban”

The American Bar Association’s South Texas Pro Bono Asylum Representation Project (ProBAR) is strategically positioned in Harlingen, Texas, where we are able to serve arriving migrants at a crucial stage of their immigration process. While the ProBAR team serves migrants at various points in their journeys, much of the work done with individuals recently arriving to the U.S. makes a big difference. Maintaining a focus on empowering individuals through high-quality legal information and education, representation, and connections to services, ProBAR works with thousands of adults and unaccompanied children in the Rio Grande Valley region annually. Due to the organization’s location along the U.S.-Mexico border, one can imagine that the ProBAR team is quite versed in adapting to rapidly changing immigration policies, laws, and guidelines.   One such policy that had a tremendous impact on migrants’ experiences at the border from March 2020 to its conclusion in May 2023 is known as Title 42. 

Section 264 from Title 42 of the U.S. Code addresses a mix of factors – public health, civil rights, and social welfare. Additionally, it grants the government the ability to take emergency action to stop the “introduction of communicable diseases.” This language stems from the 1944 Public Health Services Law and was later reintroduced in 2020. At the start of the COVID-19 pandemic, the Trump administration began using Title 42 as a justification to prevent migrants and asylum seekers from entering the U.S. President Trump’s rationale behind this decision was that allowing migrants to continue entering the country could contribute to the rapid spread of the coronavirus disease. After several changes in stipulations, three previous expiration dates, and nearly 3 million expulsions later, Title 42 officially ended on May 11, 2023. 

Title 42, and the coronavirus more generally, shaped the immigration landscape over the past several years. ProBAR staff responded proactively by shifting the scope and format of our work, services, and interactions with clients. Now, the team considers the future as a recently implemented policy is on the horizon: the Circumvention of Lawful Pathways. 

ProBAR Supervising Attorney Luis Rios shares his perspective on this new immigration rule, and how it has shaped the work that we do below: 

On May 11th, 2023, Title 42 ended. As a direct consequence of the ending of Title 42, the Biden Administration implemented a new rule for those non-citizens who might arrive at the southern border after May 11th. This new rule, known as the Circumvention of Lawful Pathways (the New Asylum Ban), took effect on May 11, 2023, and is supposed to be in effect through May 11, 2025. 

This new Asylum Ban creates a rebuttable presumption of ineligibility for asylum based on the manner of entry into the US and transit through third countries. There will be a presumption of asylum ineligibility for those people who entered the U.S. without inspection through the Mexico-US border, or who presented at the port of entry without a CBP One appointment between May 11, /2023 and –May 11, 2025, and who transited through a third country without being denied  asylum or any other form of protection from a third country through which they traveled, including Colombia,  Panama, Costa Rica, Nicaragua, Honduras, Guatemala, Belize, and Mexico. Certain categories of people are exempt from the New Asylum Ban including people who used the CBP One app, Unaccompanied children, Mexican nationals, and those authorized to travel according to DHS parole. Other people seeking entry to the U.S. might overcome the presumption of asylum ineligibility by demonstrating with a preponderance of evidence that “exceptionally compelling circumstances exist.” Evidence of facing an acute medical emergency, an imminent or extreme threat to life and safety, and being a victim of a severe form of trafficking are some examples.  

The Asylum Ban has already significantly limited access to asylum at the border. As a result, we have had to adapt to the changing situation of the people we serve at ICE detention centers. Thousands of people have tried to enter after May 11th using the CBP One app, but the majority cross the river and enter the country without authorization due to a range of technical difficulties, financial inability to secure a compatible phone, and the limited availability of appointments. With the new Asylum Ban, individuals are placed in an Enhanced Expedited Removal process. If they fear returning to their home country, the Asylum Ban requires a Credible Fear Interview (“CFI”) within 24 hours. This is an incredibly important interview wherein an individual shares his or her account of fear to return to home country to an Asylum Officer. This quick turnaround for an interview has made it challenging for potential clients to have access to counsel and meaningful due process. If they fail the CFI, they can ask for an Immigration Judge review, in which a judge may review de novo the decision of the Asylum Officer. Our Legal Orientation Program team serves non-citizens transferred to PIDC or El Valle detention centers after being detained in CBP custody and has adapted our services to these changes occurring at the border We have witnessed a reduction of the number of people in full immigration proceedings and a substantial increase in Credible Fear interviews and Immigration Judge review hearings. We have changed our approach to conducting our Group Orientations, Individual Orientations, and Workshops, and now offer an orientation about the process of Credible Fear Interviews and IJ reviews.  

Currently, both detention centers are at capacity, and people are transferred to another detention center, deported to their home country or Mexico, or released from custody very quickly.  The pace at which the deportation system operates under the Asylum Ban adds another layer of difficulty to providing critical legal services. Since PIDC has essentially become an expedited removal facility, our potential clients may be in custody one day and gone the next day, just as we begin providing our support. Asylum officers conduct CFIs seven days a week, and the results could be issued on any day of the week. After the decision, individuals are quickly transferred, released, or removed to their home country after the CFI. This situation provides a small window of opportunity for our Team to provide services.  

 Advocates have already responded to the CLP policy by challenging its legality. On July 25th, 2023, the United States District Court, Northern District of California vacated the new rule in East Bay Sanctuary Covenant v. Biden. The District Court made clear that the new law violates longstanding obligations under U.S. and International law. This decision lifted the new rule, meaning that asylum processing at the border could return to the long-lasting regime that was in place for decades before Title 42 and the CLP after a short stay. However, on August 3, 2023, the U.S. Court of Appeals for the Ninth Circuit blocked the lower courts’ decision and ruled that the CLP could remain in effect while the case moves through the appeal process. We are waiting to see what the future holds and anticipate this decision may end up in front of the U.S. Supreme Court. 

I’m proud of what our team has accomplished throughout these disruptive changes. We have focused on bringing hope, knowledge, and empowerment to our clients through our Legal Orientation Program. ProBAR’s LOP has changed many clients’ lives. We have provided orientation on the Asylum process, Credible Fear Interviews, Reasonable Fear Interviews, IJ reviews, Requests for Reconsideration (RFR), Bonds, and Requests for Releases. Where possible, outside the Legal Orientation Program, we directly represent clients to ensure they have advocates in court or before officers. Thus, despite the most recent obstacles at the border, the ProBAR team has managed to adapt and redirect our resources to provide services to the immigrants detained at El Valle and the Port Isabel Detention Center.