With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here.
On February 21 the Departments of Homeland Security and Justice took a step that the Biden administration had first previewed on January 5. The administration introduced a draft rule ( “Notice of Proposed Rulemaking”) that would deny the legal right to seek asylum to many migrants who passed through other countries on their way to the U.S.-Mexico border and did not first seek asylum in those countries.
The rule would partially shut down, to a historic and legally questionable extent, the right to seek asylum upon reaching U.S. soil, as laid out in Section 208 of the Immigration and Nationality Act.
This “transit ban” is part of an edifice of asylum limitations and alternative pathways that the Biden administration is building ahead of the Title 42 authority’s possible end on May 11, 2023, when the U.S. government’s COVID-19 public health emergency is to end. A February 17 WOLA commentary explains these new components.
The 153-page draft rule refers to a “rebuttable presumption of asylum ineligibility.” It has exceptions for some asylum seekers. The transit ban does not apply to:
Despite these exceptions, this rule could potentially turn away thousands of asylum-seeking migrants during its first months of operation. At the American Immigration Council’s Immigration Impact site, Dara Lind walked through the Kafkaesque “12 Not-at-All-Easy Steps” through which asylum seekers would have to pass once the transit ban rule goes into effect.
Immigration reform and advocacy groups quickly raised objections. Thirty groups (including WOLA) added statements to a #WelcomeWithDignity campaign warning that “Biden’s Asylum Ban Will Return Refugees to Danger and Death.” The American Immigration Council called it “one of the most restrictive border control measures to date under any president.”
ACLU attorney Lee Gelernt, who has litigated several Trump and Biden administration efforts to curtail asylum, said, “We will sue if this administration goes through with a transit ban, just as we successfully sued over the Trump transit ban.” (A 2019 Trump-era ban, with even fewer exceptions and alternate pathways, was struck down in federal court in 2020.)
Congressional Democrats voiced quick opposition. Reps. Jerrold Nadler (D-New York, the ranking Democrat on the Judiciary Committee) and Pramila Jayapal (D-Washington, ranking Democrat on the Judiciary Subcommittee on Immigration) wrote, “The ability to seek asylum is a bedrock principle protected by federal law and should never be violated. We should not be restricting legal pathways to enter the United States, we should be expanding them.” Sens. Bob Menendez (D-New Jersey), Cory Booker (D-New Jersey), Ben Ray Luján (D-New Mexico), and Alex Padilla (D-California) wrote, “We have an obligation to protect vulnerable migrants under domestic and international law and should not leave vulnerable migrants stranded in countries unable to protect them.”
The proposed rule was published in the Federal Register on February 23. Members of the public have until March 27 to submit comments, to which the administration must respond before implementing it. The rule would go into effect the moment that the Title 42 authority expires, and last for two years, a period that could be extended.
“When U.S. Customs and Border Protection introduced the CBP One mobile application two years ago,” the Washington Post’s Nick Miroff wrote on February 20, “it was largely geared toward commercial trucking companies trying to schedule cargo inspections.” Now, features on the app are essential to accessing the Biden administration’s humanitarian parole program for five nationalities, and to making appointments to request asylum at ports of entry, under a limited number of Title 42 exemptions.
Under the proposed transit ban rule, CBP One would become the main channel for initiating most asylum requests. Those who lack such appointments will be stopped outside border ports of entry before they can set foot on U.S. soil. As the number of appointments is limited by what CBP regards to be its capacity, the app may become a tool for “metering,” the practice of making protection-seeking migrants wait for weeks or even months for a limited number of appointments.
WOLA’s February 2 Border Update identified some serious issues with the app’s functionality. Reports over the last week indicate that these issues persist. “Screenshots reviewed by The New York Times read, ‘Time Slot Full,’ ‘System Error,’ or ‘Unable to Verify Location,’ even though the migrants were on the border where applicants must be to apply,” the paper reported on February 21. Department of Homeland Security (DHS) officials, talking to Miroff, disputed frequent claims that CBP One’s facial capture feature fails more often with darker-skinned subjects, revealing that 40 percent of last week’s applicants were Haitian.
The largest concern about the app continues to be the very small number of appointments available. Every morning at 9:00 AM Eastern—earlier elsewhere—asylum seekers must log into CBP One and enter data as quickly as possible in an effort to obtain an appointment in two weeks’ time. These spots fill up almost immediately, usually within a couple of minutes, forcing most asylum seekers to try again the following morning.
Reporting from Matamoros, Tamaulipas, the Rio Grande Valley Monitor’s Valerie González found families being forced to separate because the app offers fewer available spots than families have members, while CBP has stopped allowing adults to bring dependent children who don’t also have appointments. Priscilla Orta, an attorney working with Lawyers for Good Government, told González that on February 20, “about a dozen people crossed, but all of them had already sent their kids as unaccompanied minors without them by that point.”
On February 21 Sen. Edward Markey (D-Massachusetts) sent DHS a letter urging it to abandon use of the CBP One app, citing faults ranging from privacy concerns to software glitches. The app is “fine as a tool in the toolbox, but it cannot be the only access point to asylum,” Chelsea Sachau of the Tucson-based Florence Project, who provides legal aid to migrants in Nogales, told the Washington Post. “Asylum seekers have due-process rights, and reliance on this app alone will never be sufficient.”
On January 6, in agreement with the government of Mexico, DHS began using Title 42 to expel into Mexico citizens of Cuba, Haiti, Nicaragua, and Venezuela encountered at the border, regardless of asylum needs.
For Cuban migrants, the numerical impact of that policy change has been striking.
Unlike the other nationalities subject to expulsion from the U.S.-Mexico border, Cuba is not far from the United States. The inability to migrate by land, the difficulty of accessing humanitarian parole for those lacking passports or sponsors, and historic levels of economic misery in Cuba have combined to cause an immediate spike in maritime migration across the Florida Straits.
As of late January, Cuban citizens made up more than 60 percent of the 7,500 Cubans, Haitians, and Nicaraguans approved for humanitarian parole under the Biden administration’s new program.
Cuban authorities meanwhile reported on February 16 that, so far in 2023, the island had received 2,266 returns of undocumented migrants “transferred to the country in 33 maritime and air operations from the United States, the Cayman Islands, the Bahamas, Mexico, and the Dominican Republic,” according to the Mexican daily Milenio.
On March 1, the U.S. Supreme Court had been set to hear oral arguments in several Republican-governed states’ effort to keep the Title 42 policy from ending. The story of this litigation is convoluted, but in broad strokes, the Republican states were seeking to overturn a Washington, DC federal judge’s November ruling that Title 42 should end because of its “arbitrary and capricious” blockage of asylum access.
On February 16, however, the Supreme Court took the oral arguments off of its calendar. The justices, however, did not reverse their December 27 decision that is keeping Title 42 in place for now. (See WOLA’s January 6 Border Update for an overview of that decision.)
“By taking the case off its oral argument calendars, while keeping its formal stay of the DC case in effect, the Supreme Court has ensured that Title 42 will remain in effect until at least May 11,” explains American Immigration Council Policy Director Aaron Reichlin-Melnick. That is the date when the U.S. government’s COVID-19 public health emergency—and thus Title 42, a public health authority—is scheduled to end.
Still, as Reichlin-Melnick points out, Republican-governed states are likely to pursue other arguments in their litigation to keep Title 42 in place even beyond the emergency. “Should the GOP States somehow succeed,” he adds, “the Supreme Court’s decision not to hear this case in March could make it even more difficult to end the policy. That’s because the Supreme Court would be unable to hear any oral arguments until fall 2023.”