Practice Pointer: Title 42 and Asylum Processing at the Southern Border
January 12, 20231
Title 42 adds complexity to the asylum process beyond just the Southern border. A baseline understanding of this policy is key for all immigration attorneys in order to be able to screen potential clients effectively for implications stemming from how the client crossed the Southern border.
Overview
“Title 42” is the colloquial moniker for a Centers for Disease Control and Prevention (“CDC”) order barring entry and allowing for the expulsion of anyone, without normal safeguards for those fleeing persecution, at the southern border if there is a “serious danger of the introduction of [a communicable] disease into the United States.” It exempts large groups of people, including citizens, lawful permanent residents, and anyone with valid travel documents, but it does apply to people seeking asylum and/or withholding of removal in the United States.
Title 42 has been in effect since March 20, 2020, and was set to expire first on May 23, 2022 and then again under court order on December 21, 2022. However, pending litigation mandates its ongoing application. While thousands of unaccompanied minors were expelled under Title 42 during the Trump administration, unaccompanied minors have been exempted from Title 42 since January 2021.
Title 42 applies to asylum-seekers at the southern border through two main mechanisms: 1) “turn-backs” of asylum-seekers before they have touched U.S. soil; and 2) “expulsions” of asylum-seekers after they have touched U.S. soil.
Both mechanisms officially apply to anyone seeking asylum at the southern border; however, there are discrepancies in Title 42’s application depending on nationality, family composition, geographic location at the time of crossing, and to a certain extent, random luck.2
Title 42 “turn-backs”
Title 42 “turn-backs” apply to all nationalities at all southern Ports of Entry (POE). This occurs when a migrant approaches an official POE at the southern border and expresses fear and/or a desire to seek asylum to a Customs and Border Protection (CBP) officer while still on Mexican soil. In the vast majority of circumstances, the CBP officer will refuse to allow the asylum-seeker to step onto U.S. soil and will tell them something like: “the border is closed.” As such, the asylum-seeker has been “turned-back” and prohibited from seeking protection in the U.S., before having ever set foot on U.S. soil.
While CBP officers standing at the POE do have the discretion to exempt individual asylum-seekers from Title 42 for humanitarian reasons, in practice, this is incredibly rare.3 Rather, the only way for an individual to be permitted to seek asylum at the Port of Entry is to request a Title 42 exemption in advance, through CBPOne.
Title 42 “expulsions”
While Title 42 “turn-backs” occur to asylum-seekers prior to touching U.S. soil, Title 42 “expulsions” take place once an asylum-seeker is apprehended on U.S. soil (usually after crossing outside of a normal POE).
An expulsion is a new term of art that is not legally a removal order nor a voluntary departure; as such, it carries no long-term repercussions for admissibility, though past expulsions may be used as a negative discretionary factor by adjudicators. Expulsions are meant to occur rapidly and generally only involve the taking of photographs and fingerprints; people expelled under Title 42 are not assigned A numbers. Migrants processed under Title 42 do not have the right to seek asylum, though they should be provided with a very high threshold “Convention Against Torture” (“CAT”) screening by an asylum officer if they affirmatively express a fear of being tortured upon removal. As a result of the Huisha litigation, families with minor children are supposed to be affirmatively asked about fear by CBP agents and provided a CAT screening if warranted prior to expulsion. In practice, attorneys report that compliance with Huisha is not universal.
Like turn-backs, Title 42 expulsions technically apply to all nationalities; however, there are some practical nuances. To be expelled under Title 42, the migrant needs to be either a national of a country accepting expulsions from the United States or a national of a country Mexico will accept back under Title 42. Therefore, the nationalities that can be subjected to Title 42 expulsions have varied over time depending on diplomatic relations and DHS priorities.
For example, since the inception of Title 42, Mexico has been willing to accept expulsions of Mexicans, Guatemalans, Hondurans, and Salvadorans, plus other nationalities who also possess lawful status in Mexico, especially permanent residency. The countries that Mexico will accept expanded in October 2022 and January 2023 with the creation of parole programs for Venezuela, Cuba, Nicaragua, and Haiti. As part of these parole programs, Mexico agreed to accept up to 30,000 nationals per month from these countries, combined, even after Title 42 ends. Other Title 42 expulsions happen directly by plane to asylum-seekers’ home countries. While the countries accepting Title 42 flights have shifted over time, Title 42 expulsions by plane have occurred most frequently to Haiti, Colombia, Brazil, Ecuador, Nicaragua, El Salvador, Guatemala, and Honduras.
Because of the dynamics described above, there are many nationalities for whom Title 42 does not apply if they are able to make it onto U.S. soil. For example, because the United States does not currently have a relationship with the Ecuadorian government to expel Ecuadorian migrants, and Mexico will not accept individuals from Ecuador, they are immune from Title 42 expulsions. Until recently, this was also the case for Venezuelans; similarly, though Nicaragua accepts approximately one plane per month of people who have been formally ordered removed under Title 8 (the Immigration and Nationality Act), they are not currently accepting Title 42 expulsions. As such, asylum-seekers from nationalities not amenable to Title 42 expulsions and who Mexico will not accept are generally permitted to seek asylum in the U.S. and may be either held in ICE detention or released on recognizance/parole to pursue their claims within the interior of the country.
Finally, not all asylum-seekers from countries amenable to Title 42 expulsions are actually expelled. This is the result of numerical limitations on daily expulsions, mixed-nationality families, logistical constraints, and humanitarian exemptions, among other factors.
Title 42 Exemptions
Access to the CBPOne Title 42 exemption process will begin on January 12, 2023. There will be a short transition period between the old (nonprofit and attorney access) system and the new system (CBPOne access). This transition is expected to conclude by late January 2023, depending on the specific POE. After this point, the only way to apply for a Title 42 exemption will be through CBPOne.
- There will be an undisclosed but limited number of available appointments available to be scheduled 14 days in advance. Each day at a set time, new appointment slots will be released, similar to the InfoPass system.
- Access to making an appointment will be “geofenced”4 to individuals who are physically located at the U.S.-Mexico border and in some major population centers in Central and Northern Mexico.
- This process will be free.
- Noncitizens who present for a Title 42 exemption will generally be issued a Notice to Appear and a one-year 212(d)(5) parole (“DT”) and will be eligible for c(11) EADs.
- Attorneys should be aware that people with a significant criminal history, prior removals under Title 8, and/or national security concerns may be detained.
Many people granted a Title 42 exemption have an online I-94 even if they do not have a paper I-94. Attorneys should screen for this by inputting the A number into the passport number field of the I-94 online portal. Individuals paroled in with a Title 42 exemption are eligible to apply for employment authorization.
Entry without Inspection and Vehicular Presentation
As described above, while Title 42 applies to all nationalities seeking asylum while still on Mexican soil, its practical application to asylum-seekers who manage to touch U.S. soil varies greatly depending on nationality. As such, asylum-seekers from countries that are not amenable to Title 42 expulsions employ logical strategies to seek asylum on U.S. soil because the POEs are effectively closed to all asylum-seekers. This includes entering by land in between official POE–oftentimes in broad daylight–with the express intention of “turning oneself in” to Border Patrol Agents to seek asylum. Attorneys should recognize that almost all potential clients who entered the U.S. at the southern border after March 2020 did so without inspection unless they were aided by a nonprofit and/or attorney to seek a Title 42 exemption.
This also includes “vehicular presentation,” in which an asylum-seeker buys or rents a cheap car with the intention of driving onto U.S. soil at an official POE before they can be “turned-back” by CBP officers monitoring the vehicular lanes of traffic at the border line. Vehicular presentation may result in criminal charges for attempting to “elude” inspection under 8 USC § 1325(a)(2). Furthermore, it is related to several use of force incidents in the past and can result in prolonged ICE detention and potentially retaliatory parole decision-making from DHS.
Despite its intended purpose as a public health tool, it is clear that the premise of public health is long gone. Between the administrative expansion of Title 42 in the form of the Venezuelan Parole program and the Congressional politicking to codify the current incarnation of Title 42, it appears that Title 42 is around for the foreseeable future. But even once the program ends, the implications of this period of border policy could have ramifications for screening clients that came across the Southern border for decades to come.
By Taylor Levy, Taylor Levy Law and Amy Grenier, Policy & Practice Counsel, AILA
1 Please note: this is a rapidly changing area of practice, please be aware of the date of publication.
2 If you are contacted by a potential client outside of Mexico, alternatives to the Southern border should be encouraged. Mexico continues to be a dangerous place for migrants. Furthermore, individuals entering Mexico on a tourist visa whose central purpose for traveling to Mexico is to seek asylum in the United States can be detained in Mexico or denied entry. U.S. based attorneys–especially those who are not licensed to practice Mexican immigration law–could be considered to be encouraging migrants to break Mexican laws by endorsing entry through the Southern border.
3 There was a brief period in March and April 2022 when Ukrainians were exempted en masse from Title 42.
4 A geofence is a virtual geographic boundary, defined by GPS or RFID technology, that enables software to trigger a response when a mobile device enters or leaves a particular area.