Migrants waiting near the U.S. border wall are battered by dust and high winds near El Paso, Texas, May 10, 2023 (OSV News photo/Reuters).

With the May 11 expiration of the national health emergency related to the pandemic, the use of Title 42 as an immigration-enforcement tool also came to an end. That once-obscure public-health measure was used by both the Trump and Biden administrations to summarily deport millions without granting them the ability to seek asylum, all under the pretense of preventing the spread of Covid.

Despite the hysterical warnings of right-wing media and politicians, lifting Title 42 didn’t bring a “catastrophic invasion” or open the “floodgates.” Instead, border crossings surged in the weeks leading up to May 11 and dropped off afterwards, in part due to the new “Circumvention of Lawful Pathways” rule the Biden administration is implementing in place of Title 42.

It may be a departure from Covid-era policy, but the new rule isn’t an unqualified improvement, imposing restrictions that immigration advocates have called “a dramatic denaturing of the right to seek asylum.” Migrants are presumed ineligible for asylum unless they qualify for one of three exceptions: if they can enter under the humanitarian parole program; if they have made an appointment via the CBP One mobile app; or if they can show they have sought and been denied asylum in a country they passed through on their way to the United States. (Unaccompanied minors also qualify.)

Each of these pathways comes with its own set of problems. The extension of humanitarian parole offers two-year entry to the United States to thirty thousand migrants a month from specific countries—Haiti, Venezuela, Nicaragua, Ukraine, and Cuba—but in order to gain entry, applicants must have a passport and a financial sponsor in the United States, qualifications that exclude many of the poorest and most vulnerable. Meanwhile, the CBP One app allows migrants to sign up for an asylum hearing, but it offers only one thousand hearing appointments a day. Glitches in the app and overwhelming demand leave tens of thousands of migrants unable to snag one of the coveted slots, forcing them to wait in Mexican border cities where they are frequently subject to violence and extortion. Meanwhile, the asylum capacities of other countries on the path through South and Central America are also severely strained, with backlogs that can stretch for years.

It may be a departure from Covid-era policy, but the new rule isn’t an unqualified improvement.

The new rule also expands the expedited removal framework, in which asylum seekers face a preliminary screening in front of an asylum officer (not an immigration judge) shortly after they are taken into custody. With little time or opportunity to seek counsel or gather documentary evidence, many are unable to pass a “credible fear” test under these conditions. Those who fail are expelled and barred from re-entry into the United States for five years.

The blame for all of these problems, though, cannot be laid solely at Biden’s feet: it’s the responsibility of Congress to craft meaningful immigration reform. Democrats view the issue as toxic and unpopular, while Republicans exploit it to stoke xenophobia. Expanding legal pathways to citizenship and authorizing funding for new humanitarian facilities at the border and more immigration judges to hear asylum claims is essential. But with so little political will on one side and even less good faith on the other, this doesn’t seem likely anytime soon.

Biden is known for saying, “Don’t compare me to the Almighty, compare me to the alternative.” A limited humanitarian parole system and an imperfect mobile app are better than wasting money on building more walls. But just because a policy could be worse doesn’t mean we can’t demand better. And right now, for migrants on the Southern border, the alternatives too often look the same: both leave them stuck on the other side, unable to properly claim their right to asylum, putting their faith in a country that seems to wish they would just disappear.

Published in the June 2023 issue: View Contents

Isabella Simon is the managing editor at Commonweal.

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