Mixed Signals for Migrants: The Expiration of Title 42 and What Comes Next

What do Atlanta hosting the 26th Olympic Games, the launch of eBay, and the most recent passage of comprehensive immigration reform have in common? They all happened in 1996. For the past several decades, Congress has been locked in a stalemate over meaningful immigration reform, greenlighting a patchwork of immigration policies to dictate migrants’ futures. A series of piecemeal changes were made more recently when Title 42, a restriction invoked under the Trump administration in response to the COVID-19 pandemic, expired in mid-May of 2023. The emergency health measure was intended to curb the flow of migration into the U.S., specifically preventing thousands seeking asylum from entering. The fallout from Title 42’s highly anticipated expiration prompted new asylum policies, increased deportations, and tougher enforcement of policies at the border in combination with new legal pathways to enter the U.S. President Biden’s range of changes is sending mixed signals to migrants seeking a different life. 

Consistent with Title 42 of a 1944 public health law, pandemic-era administrative changes enabled border officials to deport migrants without a hearing or opportunity to request asylum. From March 2020 to May 2023, the policy was used to expel people from the southern border 2.8 million times. The expiration of Title 42 invited debate on the future of immigration policy, with one side fearful of an influx of illegal immigration and the other criticizing the Biden administration’s new, tougher policies at the border. The latter commentators fear the expiration will pose more limits on immigration, considering that Title 8 is back in effect, which means that apprehended migrants may face an “expedited removal” process that accompanies a ban on reentry for at least five years. Migrants could also face criminal prosecution, per Department of Homeland Security efforts. 

Crises around the world are contributing to the rising number of asylum requests in the U.S. Russia’s war in Ukraine, the Taliban’s takeover of Afghanistan, and the economic and humanitarian crisis in Venezuela, among other countries, have resulted in backlogs of up to five years. Yet rather than ensuring asylees with valid claims are effectively processed, the Biden administration is tightening asylum eligibility restrictions. The Department of Homeland Security released a new rule that introduces “a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.” In short, the U.S. cannot be the first place that a person has tried to immigrate. 

The Biden administration’s stricter asylum rule comes as a bit of a surprise. On the campaign trail, Biden himself promised to restore the asylum process, pledging in his acceptance speech at the Democratic National Convention that he would “restore our moral standing in the world and our historical role as a safe haven for refugees and asylum-seekers.” But of course, a candidate’s ambitions never fully come to fruition. A coalition of Republican-led states filed lawsuits attempting to delay Title 42’s termination, motivated by growing concerns regarding a surge of illegal crossings. Countering conservative fears of rising unlawful border-crossing, U.S. Border Patrol encounters along the southern border in June were the lowest since February 2021.

Unsurprisingly, the Biden administration’s recent policy shift has been met with lawsuits and heavy criticism from immigration advocacy groups. Katrina Eiland, managing attorney with the ACLU Immigrants’ Rights Projects, likened Biden’s new plan to Trump-era policies, stating “the asylum bans were cruel and illegal then, and nothing has changed now.” Describing the rule as an “asylum ban” is not entirely accurate. The shift in policy does not apply to the more than 200,000 internally displaced Mexicans who desire asylum in the U.S. In fact, the CBP recently unveiled an updated mobile app, which migrants in Mexico can use to apply for an appointment for an interview with an immigration officer at the border. However, reports indicate that appointments are limited, quickly filled up, and more accessible to migrants who are technically adept and have stronger connectivity. 

None of this is to say that Biden has exclusively focused his efforts on making asylum more difficult to obtain. The administration has sought to build legal pathways for immigration, including by expanding humanitarian parole, enabling migrants from struggling countries to fly directly to the U.S. instead of arriving at the border. The U.S. is also planning to set up regional centers in Colombia and Guatemala where people can apply for refugee status. Given a particularly polarizing aspect of the asylum process is that a migrant can reside in the U.S. while waiting for their request to be processed, this effort is designed to prevent people from coming directly to the border. The administration is attempting to strike a middle ground through its regional hubs and mobile apps that create avenues for migration but push the starting points in the process outside U.S. borders. 

The Biden administration is expanding pathways for migrants while simultaneously deterring border crossings to navigate political backlash. The longer-term effects of Biden’s policy shifts remain to be seen, but in the meantime, these complex changes are fueling the uncertainty experienced by migrants seeking to immigrate to the U.S. Heightened polarization and division in the nation’s capital have left those hoping for a more sweeping answer to immigration questions without redress. Since 1996, Congress has failed to pass comprehensive immigration reform. Legislation such as the U.S. Citizenship Act, introduced in 2021, and the DREAM Act, more recently introduced in 2023, could create a more stable system that also reduces illegal entry by opening up more legal pathways for migrants. Breaking the immigration reform stalemate will be necessary to find a more sustainable path forward.