Death of Title 42; continuation by other means

Title 42, which has been used to turn back over two million migrants at the Mexican border, is being terminated today, May 11, 2023. New measures by the administration severely cut back the effective access to asylum applications for migrants.

The new measures were laid out in a regulation issued on May 10.  In with words of Dan Gordon of the National Immigration Forum, “The rule will reportedly disqualify most all asylum seekers who fail to pursue refuge in a third country on the way to the U.S. or otherwise follow a limited number of lawful immigration pathways to get here.”

In the words of the Wall Street Journal’s Michelle Hackman, “I think the administration’s theory [in its new post Title 42 rules] is that if they’re able to deport enough people quickly enough, using these new tools that they have, then that will really quickly send a message that it is not worth it to even try.”

About 80% of asylum applications are denied in formal hearings and by courts. But applying formally for asylum can enable a person to live in the U.S. for years. This has led to immense backlogs of open asylum cases. The core idea of the Biden strategy is to cut off this opportunity.

The formal citation for Title 42 is “Title 42 of the United States Code, Section 265: Suspension of Entries and Importations of Persons from Designated Foreign Countries.” Here is a timeline for the introduction and use of Title 42 in 2020 and 2021.  Here is a posting on the November 2022 court decision that ruled Title 42 a violation of federal regulatory law.

Title 42 has already been largely replaced by the use of Title 8, which provides broad powers for migrant control. This article summarizes the effect of this phase out, when linked to other Biden administration orders that effectively bar migrants who come to the border between official entry points and those who do not apply for asylum in countries they pass through. These new rules are covered by Title 8 of the immigration statutes (8 U.S.C. §§ 1101-1504, covering many topics including deportation and removal procedures, and more).

Title 42 has mostly affected Mexican and Northern Triangle citizens. Recently it is rarely used for other migrants.





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