Written by Elisa Sotero
Edited by Annika Lilja
Immigration in America has been a long-standing and complex issue. Since the 1700s with the Nationality Act of 1790 and the first deportation laws established, still today, the United States continues to face the challenges surrounding immigration with ongoing reform. From concerns of overpopulation and economic burden, to a sheer humanitarian and safety interest, and border security concern, immigration reform has been an ongoing bipartisan rollercoaster, shifting throughout the years and administrations (both federal and by state), and across party lines. Given the recent record-breaking displacement of people across the western hemisphere (the greatest since World War II), and without a recent resolution from congress, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) have rolled out new immigration measures in January 2023, and most recent on February 21st, 2023, announcing a new “temporary” rule which is expected to be in effect by May and was subject to a 30-day public commentary period.
The measures were created in preparation for the expected expiration of Title 42 Order, a pandemic-era border policy introduced in March 2020 that allowed border patrol agents to turn away migrants at the southern border on the grounds that they might bring Covid-19 into the U.S. Once Title 42 ends, migrants attempting to enter the U.S. will only be processed under the long-established Title 8 authorities, which consists of a process to determine if a migrant has the proper documentation or not when arriving to a U.S. port of entry. Under Title 8, if the migrant arrives without documents, cannot prove a legal basis to remain in the U.S., is detained between ports, or has a criminal background, they will be expedited for removal from the U.S. without a court hearing.
According to Claudio Herrera-Baeza, a spokesperson for the El Paso Sector Border Patrol, "Under Title 8 authorities, any non-citizens who cross the border illegally between the ports of entry and are determined not to have a legal basis to remain, will be processed for removal." If a migrant qualifies for parole based on legitimate life-threatening fear of returning to their country, or seeks asylum through fear of persecution (religious, race, political views, etc), a case is processed under the judicial system to determine approval to remain in the U.S. legally or process the migrant’s removal/deportation. The DHS is increasing and improving its use of expedited removal to promptly remove those who do not claim fear of persecution or torture, or cannot prove credible fear following an interview with an Asylum Officer. Individuals removed under Title 8 will not be allowed to reenter the U.S. in five years, but if they do try, they may be subject to a five-year bar on admission and potential criminal prosecution. While Title 8, as of today, will be the only way of processing migrants attempting to enter the border, the newest measures introduced in 2023 by the DHS and DOJ aim at first, enforcing U.S. immigration laws with lawful pathways that address asylum for those who need it and qualify through a new online legal process, and second, addresses rules relating to nationals of certain countries.
The DHS January 2022 Measures
Building off the recent lawful immigration procedures established for Ukrainians and Venezuelans in October 2022, and the dramatic results (CBP saw a drop of 90 percent in the number of Venezuelans intercepted at the border according to DHS.gov), the January measures provide a similar process for Cuban, Haitian, and Nicaraguan nationals who are fleeing humanitarian crises and face unique challenges in their homeland, such as life-threatening fear. Qualifying nationals of these countries can schedule appointments to present themselves at ports of entry through the Customs Border Patrol (CBP) One app, a fully online platform, which provides advance authorization to travel to the United States, on a case-by-case basis for a temporary grant of parole for up to two years, including employment authorization. This procedure was created with the goal of providing a safe and organized way to apply for entry into the U.S., as well as discouraging unsafe arrivals/border crossings. Nationals from these countries who do not abide by this process or attempt to enter the U.S. unlawfully, and cannot prove a legal basis to remain, will be removed or expelled to Mexico. Currently, Mexico is willing to accept 30,000 individuals returned per month who fail to use these new lawful pathways. Applying this process to Cubans, Haitians, and Nicaraguans is subject to the Government of Mexico’s continued willingness to accept the return or removal of nationals from those countries.
The applicant must pass a thorough biometric and biographic national security and public safety screening and vetting; have a supporter in the United States who commits to providing financial and other support; in addition to complete vaccinations and other public health requirements. Those who agree to become potential supporters of qualifying nationals from the four approved countries, can apply to the DHS via www.uscis.gov/CHNV. Individuals and representatives of organizations seeking to apply as supporters must disclose their financial support and pass security background checks to protect against exploitation and abuse. Individuals who enter the United States, Mexico, or Panama without authorization will typically not be eligible to apply. These processes will allow up to 30,000 qualifying nationals per month from all four of the mentioned countries to reside legally in the United States, for up to two years and to receive permission to work, during that period.
Prior to implementation of the CBP One app, all non-citizens migrating to the U.S. seeking an exemption from Title 42 were required to submit requests through third party organizations located near the border. Once the Title 42 public health order is no longer in place, the new scheduling process will be available for non-citizens, including those who seek to make asylum claims, to schedule a time to present themselves at a port of entry for inspection and processing, rather than arriving unannounced at a port of entry or attempting to cross in-between ports of entry. Those who use this process will usually be eligible for work authorization during their period of authorized stay. Individuals who use the CBP One App will be able to schedule an appointment to present themselves at the following ports of entry: Arizona: Nogales; Texas: Brownsville, Hidalgo, Laredo, Eagle Pass, and El Paso (Paso Del Norte); and California: Calexico and San Ysidro (Pedestrian West – El Chaparral). They will be required to verbally attest to their COVID-19 vaccination status and may be required to provide proof of vaccination against COVID-19. The CBP One App is free to download and available in the Apple and Google App Stores as well as at https://www.cbp.gov/about/mobile-apps-directory/cbpone.
DHS & DOJ February 2023 Rule
To limit unpredictable migration and create additional safe and organized processes, the DHS & DOJ proposed a new rule on February 21st, 2023 that promotes the use of new and existing lawful processes that deter border crossings, by imposing a new condition on asylum eligibility and sets consequences for those individuals who bypass the lawful methods. “We are a nation of immigrants, and we are a nation of laws. We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners,” said Secretary of Homeland Security Alejandro N. Mayorkas. “As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry,” added Mayorka. The proposed rule is intended to have a 30-day public commentary period before it becomes into effect.
The DHS & DOJ issued these steps as a temporary measure in response to the record-setting influx of migrants into the U.S., the migration surge anticipated once Title 42 Order ends, and the absence of congressional action to update the immigration system based on the challenges the judicial system and border patrol are facing. The US Attorney General, Merrick B. Garland has said, “The Department of Justice is responsible for administering the Nation’s immigration courts and ensuring that claims are adjudicated expeditiously, fairly, and consistent with due process.” Furthermore, Garland has been quoted saying, “This proposed rule will establish temporary rules concerning asylum eligibility in those proceedings when the Title 42 order is lifted. We look forward to reviewing the public’s comments on this proposed rule.” The new rule will apply to those who enter the U.S. at the southwest land border for 24 months following the rule’s effective date, and once the Title 42 order is lifted. Under the proposed rule, asylum-seekers who show up at the southern border without first applying for an asylum appointment through the CBP One App, or don’t seek protection from a country they passed through on the way to the U.S., will typically be denied asylum. However, children are exempt. Individuals who cannot prove a valid claim to protection under the proposed rule’s requirements will be subject to prompt removal under Title 8 authorities, and would be forbidden to reenter the U.S. for five years.
The proposal is driving controversial views from human rights and immigration advocates alike, as they feel the new proposed rule will deprive migrants of the right to seek asylum in the U.S. and extends more asylum rights to a handful of countries, in addition to the risk of sending migrants back to grave danger or subjecting them to the flawed parole or asylum laws of pass-through countries. Krish O’Mara Vignarajah, president of the Lutheran Immigration and Refugee Service, has explained that, “Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.” Additionally, the CBP One App has been overloaded by huge demand and boggled down with glitches since tens of thousands of migrants staying in shelters on the Mexican side of the border began using it. “At a shelter in Tijuana, across from San Diego, 150 families recently tried unsuccessfully to make an appointment,” said Lindsay Toczylowski, an immigration lawyer who was on site.
The Impact of these Measures
The DHS’ and DOJ’s attempt at regulating migration are evident through the measures taken in January and the newly proposed rule announced in February, setting new asylum eligibility requirements and consequences for those who bypass the lawful methods. Since the implementation of the January parole measures for nationals of Cuba, Haiti, Nicaragua, and expansion of the process for Venezuelans, the month of January experienced the lowest level of encounters between the ports of entry since February 2021 - encounters of nationals from those countries between ports of entry at the southwest border declined from a 7-day average of 1,231 on January 5, the date the new processes were implemented, to just 35 on January 31—a drop of 97% in just over three weeks. Encounters have remained at similarly low levels thus far in February. According to a New York Times article published in February, administration officials said during a call with reporters, that the decline in unlawful crossings proved that pairing a humanitarian program with punitive measures that have consequences for illegal crossers, was effective.
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