The Biden administration has five weeks to restore asylum policies at the U.S.-Mexico border after a federal judge invalidated the Trump-era Title 42 public health policy, enacted in 2020, that allowed for the rapid expulsion of migrants arriving at the southern border under the guise that it would simply help prevent the spread of COVID-19.  

The decision could end up making border enforcement harsher for some migrants without valid asylum claims, though it received overwhelming praise from immigration attorneys and advocates in Texas.

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“I’m elated,” said Houston immigration attorney Ruby Powers, who believed the decision was a long time coming. “This is a policy that’s being erroneously applied to expel people.” 

Texas stands to be the state most affected by the overturning of one of the Trump administration’s most consequential border policies, considering it shares the largest share of the southwest border with Mexico, has the largest number of ICE detention centers and border patrol stations. And cities such as Houston are top destinations for immigrants from the Northern Triangle, Mexico and Venezuela, who have been subject to Title 42 expulsions. 

While some may perceive the return to the pre-Trump asylum system to mean more relaxed border enforcement, immigration experts said that doing away with Title 42 expulsions may actually bring harsher consequences for migrants without valid asylum claims, including increased time in detention and having an official deportation on their record. Under Title 42, recidivism rates — repeat border crossings — increased to 27% in 2021 up from 7% in 2019, pre-Title 42. 

“Most of the people that are being expelled under Title 42 are likely to be subject to an expedited removal hearing,” said Doris Meissner, former Commissioner of the U.S. Immigration and Naturalization Service (INS) and fellow at the non-partisan think tank Migration Policy Institute.

“If those expedited hearings go into place immediately when Title 42 is lifted, it’ll be very clear very quickly that this is not a new opportunity,” said Meissner, who said that at first glance, it could be easy for a potential migrant to perceive the end of Title 42 as a chance to get into the United States. 

She added that many of the people arriving recently with valid asylum claims were likely getting allowed into the U.S. through government exemptions. 

According to his decision, Senior U.S. District Judge Emmet Sullivan, who is based in Washington, D.C., found the government’s suspension of asylum laws under CDC health code “arbitrary and capricious.” He granted the government five weeks to transition out of Title 42 and into pre-COVID-19 asylum laws.  

Human rights advocates, migrants and immigration attorneys criticized the blanket policy as inhumane and overreaching as it served as a convenient tool for both Trump and Biden to swiftly control the historic number of border crossings. Title 42 used the federal health code as a rationale to bypass the mandated asylum process, which typically involves screenings or “credible fear interviews.” Under status quo border policies, applicants whom judges said did not have valid asylum claims were subject to “expedited removal” from the country, a deportation process that went on a person’s permanent record, sometimes carried criminal charges and prohibited future entry into the U.S. either permanently or temporarily. Expulsions under Title 42 did not carry the same legal consequences for migrants, so migrants were less likely to be deterred from repeat crossings.

Between the two administrations some 2.4 million migrant encounters were subject to Title 42 expulsions since March 2020, according to U.S. Customs and Border Protection data. Roughly half of those took place in Texas, including when the government flew thousands of Haitians camped out in Del Rio back to Haiti, even though many hadn’t lived there for several years. 

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Amid this win for immigration advocates, lawmakers and politicians in Texas continue to advocate for seemingly hard-line policies. In the first week filing for the 2023 Texas legislature, lawmakers submitted multiple bills aimed at cracking down on border crossers. Gov. Greg Abbott posted statements on Twitter recommitting to aggressive border security. And the state continues to bus migrants to U.S. cities, a political ploy that has counter-intuitively benefited migrants who opt into the free ride. 

Though the judge’s ruling restores access to asylum at the border, the system still remains overwhelmed by cases which delays decisions for both valid and meritless immigration cases. Migrants will continue to face challenges even as new judges are added to backlogged immigration courts. And swiftly handled cases may not be the solution either. The new Houston-area program that fast-tracked asylum cases also led to low representation rates, negatively impacting the likelihood of winning their cases, revealing a central tension in any effort to address the deluge of asylum cases — a fast trial is often not a fair one. 

Houston Immigration Legal Services Collaborative director Zenobia Lai said “it’s about time” that Title 42 ended, because of how it violated asylum laws. That said, she continues to worry about the treatment of migrants arriving at the border. 

“The fear that I have is that people may not be expelled but if they are being allowed to cross and if they are not being expeditiously removed, they will be detained,” Lai said. “My worst fear is that it will explode the detention population.”

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How exactly the Biden administration will go about restoring asylum law within five weeks is unclear, but in the short term a public end to Title 42 will likely create the perception of a more open immigration system, making it easier for smugglers to profit off of desperate people abroad. The Department of Homeland Security appears to be trying to get ahead of that misconception. 

“People should not listen to the lies by smugglers who will take advantage of vulnerable migrants, putting lives at risk,” read a Department of Homeland Security statement regarding the end of Title 42. “The border is closed, and we will continue to fully enforce our immigration laws at the border.” 

On TikTok, a couple of popular accounts already have encouraged people to take advantage of the end to Title 42 to immigrate, though the majority of official news accounts shared on social media have accurately reported that the border remains closed to people without valid asylum claims. 

“What will the new world look like after December 21st? I’m not sure,” said attorney Ruby Powers, “But I think it’s going to involve a lot more people coming to the United States.” 


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