WOLA: Advocacy for Human Rights in the Americas

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17 Feb 2023 | Commentary

How the Biden Administration May Keep Asylum out of Reach After Title 42

The Trump administration severely curtailed the legal right to seek asylum at the U.S.-Mexico border. Despite promising to restore and strengthen the U.S. asylum system, the Biden administration, at times following federal court mandates, has kept in place the most severe restriction: the March 2020 “Title 42” pandemic expulsion order. Title 42, however, may end in May along with the U.S. government’s public health emergency.

It is looking less likely, though, that Title 42’s end might mean a restoration of the right to seek asylum at the border. The Biden administration is signaling what new, post-Title 42 limits to asylum might look like. A “transit ban” may deny asylum to people who passed through a third country en route and did not first seek it there. Aggressive use of “expedited removal” could force asylum seekers to defend their cases within a few days, from the austere custody of U.S. Customs and Border Protection (CBP), without meaningful access to counsel. Ongoing negotiations with Mexico may enable thousands of removals of non-Mexican citizens across the land border.

Other Biden administration initiatives point towards expanded alternative legal pathways for some migrants. A “humanitarian parole” program allows a few countries’ migrants to gain a temporary documented status in the United States, enabling them to apply online and travel by air. A CBP smartphone app creates a process for a too-limited number of “most vulnerable” migrants to apply for exemptions to Title 42 while they are in northern Mexico. These initiatives offer some important relief, but suffer from serious design and operational flaws that the administration must address.

There must be a better way for migrants to seek protection than being forced to brave treacherous routes, dominated by organized crime and corrupt officials, in order to set foot on U.S. soil and ask asylum. Truncating the right to seek asylum, though, is not a solution. The U.S. immigration system, the U.S. labor market, and today’s record worldwide human mobility demand expanded legal pathways, including higher refugee admissions, temporary protection, and seasonal labor migration mechanisms, while preserving the right to seek asylum at the U.S. border.

Migration declined in January because the ability to seek asylum at the border declined

On February 10 CBP announced a striking 40 percent drop, compared to December, in the number of undocumented migrants the agency encountered at the U.S.-Mexico border. The January figure of 156,274 migrant encounters, 128,410 of them by Border Patrol, was the fewest measured since February 2021, Joe Biden’s first full month in office.

Chart: Encounters with All Migrants at the U.S.-Mexico Border Mar 2020 Apr 2020 May 2020 Jun 2020 Jul 2020 Aug 2020 Sep 2020 Oct 2020 Nov 2020 Dec 2020 Jan 2021 Feb 2021 Mar 2021 Apr 2021 May 2021 Jun 2021 Jul 2021 Aug 2021 Sep 2021 Oct 2021 Nov 2021 Dec 2021 Jan 2022 Feb 2022 Mar 2022 Apr 2022 May 2022 Jun 2022 Jul 2022 Aug 2022 Sep 2022 Oct 2022 Nov 2022 Dec 2022 Jan 2023 Nationalities subject to Title 42 expulsion into Mexico 30433 15796 21929 31228 38403 46579 52110 66462 66336 66103 68742 89190 148155 144898 139919 141769 154443 148322 122304 117085 114084 99499 92018 111286 134140 126567 172308 124678 104196 99347 99426 123278 100517 89549 110666 Other nationalities 4027 1310 1308 1821 2526 3435 5564 5467 5777 7891 9672 11909 25122 33897 40678 47265 59150 61518 69697 47752 60761 79754 62856 54724 88434 109218 68828 83156 95966 104740 128121 107990 134412 162429 45608

The Department of Homeland Security (DHS) portrayed the drop in migration as the result of a decision, announced on January 5, to apply the Title 42 pandemic expulsions policy more broadly. Just after that date, with Mexico’s assent, CBP began expelling citizens of Cuba, Haiti, and Nicaragua back across the land border into Mexico, without affording them a chance to ask for U.S. asylum. With that announcement, Mexico now accepts expulsions of eight countries’ citizens: its own, these three nationalities, plus (since March 2020) citizens of El Salvador, Guatemala, Honduras, and (since October 2022) Venezuela.

DHS Secretary Alejandro Mayorkas touted “a significant drop in arrivals of Cubans [down -85 percent from December to January], Venezuelans [-62 percent], Nicaraguans [-91 percent], and Haitians [actually up 55 percent, from 31 to 48] in between our ports of entry at the southern border. This is the model that we have built and we will continue to build.

That “model” sharply restricts the ability to seek asylum. It should be unsurprising that if asylum is all but impossible to obtain, then some people seeking protection will stop coming.

Halting asylum at the border, though, is illegal and closes off a main pathway to protection for some of the region’s most vulnerable people. The right to seek asylum upon reaching U.S. soil at the U.S.-Mexico border is established by Section 208 of the 1952 Immigration and Nationality Act (INA), the fundamental U.S. immigration law. This right exists regardless of nation of origin, the route taken to the border, or the means by which the migrant crossed into the United States.

The right to asylum has been severely truncated since March 2020, when the Trump administration, citing the COVID-19 public health emergency, made it possible to rapidly expel migrants, mostly into Mexico, while others were flown to their home countries, with no chance to request protection in the United States. The Biden administration and federal courts have kept Title 42 in place, pending a Supreme Court ruling; the administration has meanwhile expanded its scope to expel new nationalities more aggressively.

As it nears its third anniversary, Title 42 has expelled migrants over 2.6 million times. 2,470,821 of those expulsions have involved nationalities that Mexico agreed to accept as expulsions, including its own citizens. Since Title 42 went into effect, 65% of all migrants encountered at the U.S.-Mexico border have come from countries whose citizens’ expulsion Mexico accepts. That proportion calls into question whether Title 42 has been much of a “deterrent” to migration. In January 2023, 71% of encountered migrants were from those countries.

We can now see the outlines of the Biden administration’s plans to limit migrants’ access to asylum once Title 42 ends

Barring unforeseen court challenges and reinterpretations of the law, however, Title 42 may end soon. A January 30 White House “statement of administration policy” and a February 6 brief filed before the Supreme Court revealed the Biden administration’s intent to terminate the U.S. government’s COVID-19 “public health emergency” on May 11, 2023. The Centers for Disease Control and Prevention’s (CDC) August 2021 order prolonging the Title 42 pandemic policy states that Title 42 ends when the public health emergency ends.

The Biden administration’s latest filing argues that Republican states’ legal challenges seeking to preserve Title 42 are moot, because ending the government’s COVID-19 state of emergency undermines any basis for keeping Title 42 in place. (“Title 42” refers to the part of the U.S. Code dealing with “Public Health and Welfare.” It is hard to justify expelling migrants under a public health provision after the public health emergency ends.)

If Title 42 ends on May 11, however, the Biden administration does not intend to restore the right to seek asylum as it existed before the pandemic. As administration officials seek to forestall a large-scale arrival of protection-seeking migrants, their plan is taking shape. Two sweeping new measures to limit asylum at the border are in the works, and both resemble policies that the Trump administration had sought to implement.

The transit ban

“In the coming weeks,” the administration’s Supreme Court brief read, it will issue a proposed rule (first announced on January 5) that would reject many asylum seekers who pass through third countries en route to the U.S.-Mexico border and do not first request asylum in those countries. Such migrants “will be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet exceptions that will be specified.”

Migrants’ rights advocates call this “transit ban” or “asylum ban” a “death sentence” because it is likely to return to danger people with legitimate protection claims. Under this ban, the only nationality not subject to this ineligibility would be Mexicans, who pass through no other country on their way to the border.

The Trump administration put in place a similar ban in 2019, only to see it struck down in federal court. The Immigration and Nationality Act is quite clear that asylum seekers can only be sent to another country under two circumstances. First, if a “safe third country agreement” exists with that third country; the United States’ only such agreement is with Canada. Second, if the migrant was “firmly settled” in the third country. 

“Very few asylum seekers’ cases meet either of these conditions,” explains a February 8 letter from Senate Judiciary Committee leaders Sen. Dick Durbin (D-Illinois) and Sen. Alex Padilla (D-California), a finding echoed in a January 26 letter from 77 House and Senate Democrats. “Establishing a higher standard for asylum based on passage through a third country would circumvent this statutory scheme and undermine the fundamental right to asylum, violating the letter and spirit of the law,” Senators Durbin and Padilla contended.

Biden administration officials insist that their transit ban will be different from Trump’s because of still-undefined “exceptions” and their use of the federal government’s deliberative “notice and comment” rulemaking process. Tentative administration plans to introduce legislation codifying a transit ban, revealed by Reuters, appear to tacitly acknowledge that existing law does not uphold it.

Expedited removal

Even if it allows them to seek asylum, the administration plans to subject many migrants to expedited removal, an accelerated process that occurs while they are in CBP or Border Patrol custody. 

Normally, migrants who aren’t expelled under Title 42 either go to Immigration and Customs Enforcement (ICE) detention, where they face an immigration judge usually within months, or —in nearly all cases if the asylum seeker is a child or a parent with children—they are released into the United States with dates to appear in immigration court. Instead of this, the administration plans to require many asylum seekers to defend their cases within days of being apprehended.

They will have to do this from CBP’s or Border Patrol’s jail-like holding facilities, with little or no access to counsel. Those who fail “credible fear interviews” with U.S. asylum officers, usually held by videoconference or over the phone, will be swiftly removed from the United States.

The administration discussed this plan in the January 5 Department of Homeland Security (DHS) document revealing Title 42’s expansion to new nationalities. On January 26 Reuters, citing five sources, revealed that officials are “poised” to roll out an expedited removal procedure. Already, CBP reports that the number of Border Patrol-apprehended migrants placed in expedited removal proceedings jumped from 6,535 in December to 15,837 in January. (As the Biden administration hasn’t yet rolled out expedited removal of asylum seekers, these are presumably—though not necessarily—migrants who did not request asylum.)

Advocates worry that the rushed procedure could end up with many “false negatives.” Asylum seekers subjected to this process would be exhausted from their flight to the border, disoriented from days in CBP’s holding cells, and unable to narrate their stories clearly to an asylum officer over a web-conferencing service, without meaningful legal representation. The result could be more cases of vulnerable people removed to places where they face high probability of persecution, a human rights violation known as “refoulement.”

The proposed fast-track screenings resemble Trump administration programs that President Biden had ended with a February 2, 2021 executive order. Starting in Border Patrol’s El Paso Sector in 2019, DHS had implemented two parallel programs: Prompt Asylum Claim Review (PACR), applied to non-Mexicans, and the Humanitarian Asylum Review Process (HARP) for Mexicans. PACR and HARP led to the detention—and in nearly 75 percent of cases, the rapid removal—of about 3,700 to approximately 5,290 asylum seekers, usually after a brief time in CBP custody.

Negotiating with Mexico to make it all possible

Both the “transit ban” and expedited removal could involve swift deportation of large numbers of migrants, many of them from countries very far from the U.S.-Mexico border. Flying them back to their countries of origin would be so costly that most would likely instead be released into the United States with dates to appear in U.S. immigration court.

To avoid that outcome, the Biden administration is negotiating for Mexico’s government to accept deportees across the land border, as it has done in over 2.4 million Title 42 expulsions and over 72,000 implementations of the now-defunct “Remain in Mexico” program. The Washington Post revealed on February 8, citing “four current and former U.S. officials familiar with the discussions,” that talks with Mexican officials are ongoing.

It is quite possible, then, that U.S. authorities may continue to send large numbers of protection-seeking migrants back into Mexican border cities where services are scarce and security conditions are dangerous.

Mexico has not yet declared its intentions, though a February 6 statement from Mexico’s Foreign Ministry rejected any possible restart of the “Remain in Mexico” policy, which the U.S. Supreme Court allowed the Biden administration to terminate in May 2022. Mexico’s chief diplomat for North America, Roberto Velasco, told the New York Times that any so-called “safe third country” attempt to send asylum seekers back to Mexico to apply for asylum there “is a red line for us… it would overwhelm the system.”

Mexican law in fact prohibits sending non-Mexican deportees into its territory. “Mexican authorities skirted that law with Title 42 expulsions by arguing that expelled migrants have not officially left Mexican territory,” the Washington Post explained. However, deportations under “normal” immigration law (the Immigration and Nationality Act, Title 8 of the U.S. Code), which require processing in the U.S. immigration system, appear more clearly to violate Mexican law.

Some legal pathways are taking shape alongside these limits. But they have (probably fixable) problems

Unlike the Trump administration, the Biden White House and DHS are not entirely closing off avenues to protection for migrants who need it. Two programs, begun in conjunction with Title 42 expansion, offer a legal pathway to enter the country. In their present form, both “humanitarian parole” and “Title 42 exemptions via smartphone app” suffer from serious design and operational flaws. Many of these, though, are fixable.

Humanitarian parole

In October 2022 and January 2023, the Biden administration convinced Mexico to go along with expanded cross-border Title 42 expulsions of Cubans, Haitians, Nicaraguans, and Venezuelans by offering some of these countries’ citizens another legal pathway. A “humanitarian parole” program, first offered to people fleeing Ukraine in April 2022, now permits a cumulative total of up to 30,000 of those four Latin American countries’ citizens to enter the United States each month, and to remain in the country for up to two years, after applying online from outside the United States.

The program is explained in documents from DHS and the White House, and in Federal Register entries laying out the parole process for Cubans, Haitians, Nicaraguans, and Venezuelans. Mexico’s top diplomat for North America told the Dallas Morning News that his government proposed the humanitarian parole pathway as a condition for accepting expulsions of those countries’ citizens.

While asylum is a route to permanent resettlement in another country, the parole program provides approved applicants with permission “to reside legally in the United States for up to two years and to receive permission to work here, during that period.” In other words, the parole program could provide temporary status to some, but it does not serve the purpose of providing a stable new home to those who cannot return to their country of origin. A possible exception may be citizens of Cuba, who in most cases can apply for U.S. residency, under the Cuban Adjustment Act of 1966, after a year in the United States.

In January, CBP reported, 11,637 citizens of Cuba, Haiti, Nicaragua, and Venezuela saw their humanitarian parole applications accepted. (Another 6,748 were expelled into Mexico that same month.) That number is far short of the permitted monthly maximum of 30,000, which may indicate that some of the barriers to parole in the program’s design are too high to offer protection to many migrants who urgently need it, and who might qualify for asylum under normal circumstances.

The main barriers are the program’s requirements that the applicant be holding a valid or recently expired passport, and that the applicant have a sponsor in the United States with valid immigration status and the ability to support the migrant financially.

Both conditions favor migrants with more resources and connections. The long-term result of this pair of policies could be a two-tiered system in which wealthier, more connected migrants end up in the United States, while poorer migrants end up in Mexico. Not to mention that the program only benefits nationalities with a high number of recent border crossings into the United States.

The passport requirement gives a powerful gatekeeping role to passport authorities in Caracas, Havana, Managua, and Port-au-Prince, where governments face serious and well documented allegations of corruption or human rights abuse. In Haiti, passport requests have more than tripled, to 4,200 per day, overwhelming the government’s passport capacity. Reports point to long lines forming at passport offices in Cuba.

Obtaining a willing sponsor is also proving to be a big obstacle to parole. “Not all Cubans can (apply), for that you need a sponsor in the United States and not everyone can, there are even people who have relatives in the United States, but they are not in a position to sponsor another relative who is on the island,” Julio Ferrer of the Cuban human rights group Cubalex told Expediente Público. U.S.-based Haitians are being overwhelmed with requests to sponsor family and friends in their country of origin, where the government is in a state of semi-collapse, Reuters reported.

Twenty Republican state governments have meanwhile filed suit in federal court against the program, requesting a preliminary injunction on February 14 to block its use. The ability to grant temporary humanitarian parole, however, is part of the 1952 Immigration and Nationality Act. Section 212(d)(5)(A) of that law even predates asylum, which was not added until the 1980 Refugee Act. It allows the President “in his discretion [to] parole into the United States temporarily under such conditions as he may prescribe, only on a case-by-case basis for urgent humanitarian reasons or significant public benefit, any alien applying for admission to the United States.”

Asylum via app: CBP One

As of January 12, 2023, the Biden administration has opened up a second path for some asylum seekers who would otherwise be subject to Title 42 expulsion. A limited number of Title 42 exemptions at the border are now available to asylum-seeking migrants deemed “most vulnerable,” via a feature on CBP’s mobile application, CBP One. To access the app, migrants must be geographically located in central to northern Mexico.

“Vulnerable” migrants are those who have a physical or mental illness, a disability, are pregnant, lack safe housing or shelter in Mexico, have been threatened or harmed while in Mexico, or are under 21 or over 70. These criteria do not include LGBTQ status as a vulnerability. Those who meet these criteria may use CBP One on their phones to schedule appointments at ports of entry (official crossings, or “POEs”) along the land border.

The app-based process replaces a less formal procedure that had been in place for about a year. CBP had been granting a slowly expanding number of exemptions to Title 42, scheduling port-of-entry appointments for asylum seekers based on vulnerability recommendations passed along by humanitarian groups, immigration lawyers, and other service providers, with at times uncomfortable results. 

As of January 12, CBP intends for the CBP One app to become the main channel for seeking Title 42 exemptions. “In January, CBP processed 21,661 individuals at POEs as exceptions to Title 42 based on an individual vulnerability assessment,” the agency reported; 9,902 of them made their appointments since January 18 using CBP One. “Over 20,000 individuals have scheduled an appointment via CBP One and the top nationalities who have done so are Venezuelan and Haitian.”

In January, 29 percent of all migrants encountered at the U.S.-Mexico border who were processed under regular immigration law (not expelled by Title 42) were processed at ports of entry, instead of being apprehended by Border Patrol between the ports of entry. That is the largest monthly proportion ever, indicating that when protection-seeking migrants are able to approach POEs, they choose to do so rather than cross by unregulated routes often controlled by organized crime.

After Title 42 ends, CBP One could become the main channel for requesting asylum at the U.S.-Mexico border. Before that happens, the agency needs to address a series of problems with its design and implementation, some of them urgent.

First, all along the border, advocates, shelters, and migrants report that CBP has made very few appointments available. Migrants must be ready and at their phones to fill out the online application each morning at 6:00 AM, when a few hundred new spots open up. If they—or the CBP One application—are too slow, then their chance at protection in the United States evaporates quickly, usually within two minutes.

The effect is similar to the practice of “metering,” CBP’s stationing of officers on the borderline to prevent more than a few asylum seekers per day, at most, from approaching the port of entry. A federal judge declared “metering” illegal in 2021 as it limits the legal right to seek asylum. It particularly endangers Mexican asylum seekers, who are forced to wait in their own country, where they believe that they are not safe.

Second, the app’s facial recognition requirements appear to be disadvantaging darker-skinned asylum seekers, particularly those from Haiti, according to advocates’ observations recorded by AP, the San Diego Union-Tribune, the Rio Grande Valley Monitor, and the Guardian.

At a time when data from Panama’s Darién Gap region show an increase in migration of Haitians, it is troubling that the number of Haitian citizens allowed to approach ports of entry fell from 5,107 in December, before CBP One, to 3,127 in January. Curtailing Haitian asylum seekers’ access could jeopardize a rare success: since June 2022, 97 percent of Haitian migrants encountered at the U.S.-Mexico border have come to ports of entry. CBP One must not make Haitians’ access to POEs more difficult.

Third, critics of CBP One have voiced concern about CBP’s use of location and other private data that the app gathers. Fourth, the app requires asylum seekers both to own a smartphone and to have access to a fast internet connection—two conditions that may be hard to meet while fleeing danger. Fifth, it is so far available only in English, Spanish, and (partially) Haitian Kreyòl, which leaves out asylum seekers who speak Portuguese, Indigenous languages, and languages common outside the Western Hemisphere.

Sixth, media and advocates’ reports have pointed to bugs, freezes, and other technical issues with the app, including its location data feature. CBP is presumably working on this: use of the app is “an experiment,” an unnamed senior administration official told CNN. “Work is underway to build out the portal and is expected to come together in the next several months.”


Backers of the Biden administration’s new asylum limits are right about one thing: it is absurd to so often require hundreds of thousands of migrants who need protection, or who could be contributing to U.S. communities and economies, to first cross the Darién Gap, Central America, and Mexico, in order somehow to set foot on U.S. soil. There must be safer pathways that cut organized crime and corrupt officials out of the picture.

Seeking asylum at the U.S. border must always be an option for those who need it. But for the vast majority of those coming to seek asylum today, the journey should not be necessary. It is made necessary by a lack of other legal pathways, from low caps on refugee admissions and temporary work visas, to lengthy wait times for family-based immigrant visas, to a costly and complicated process for those who would seek to follow the existing legal pathway to U.S. residency and citizenship.

Addressing many of these factors would require legislation from a U.S. Congress that is deadlocked, with one party rabid with anti-immigrant sentiment and the other led by a White House that, as a former top official recently told the New York Times, “is keen to keep the topic out of the news cycle.”

With little hope for legislative change, the Biden administration is strongly signaling what it plans to do, and pointing to the reduced January migration numbers to back up its emerging “model.”

Before it becomes policy, the administration needs to rethink this model. Transit bans, fast-tracking asylum, and mass returns to Mexico are cruel, probably illegal, and unlikely to control protection-seeking migration at a time of historic human mobility, which will only worsen given ongoing political instability, repression, and persecution in many countries, high levels of violence and inequality, and climate change impacts that promise to grow more severe.

While the administration has taken some steps to expand legal migration pathways, such as humanitarian parole, and to set up an appointment admission system at the border, both need major fixes. They cannot in any way replace the need for the Biden administration to fully restore asylum at the border in a way that is accessible to everyone, and to address the significant shortcomings and lack of resources in our current immigration system.