Ahead of Title 42's end, U.S. finalizes new migrant rule critics condemn as asylum ban

The Biden administration on Wednesday announced the finalization of a new rule that will go in effect Thursday night when Title 42 expires. File Photo by Joebeth Terriquez/EPA-EFE
The Biden administration on Wednesday announced the finalization of a new rule that will go in effect Thursday night when Title 42 expires. File Photo by Joebeth Terriquez/EPA-EFE

May 11 (UPI) -- Ahead of a Title 42's expiration Thursday night, the Biden administration has finalized a rule it says will "incentivize" the use of lawful immigration pathways though critics describe it as an asylum ban.

The administration of President Joe Biden has been preparing for months to thwart an anticipated surge in migrants expected to attempt to enter the United States once the COVID-19-era health measure known as Title 42 expires.


Among those measures is the new rule finalized Wednesday that is to go in effect Thursday midnight.

First unveiled in early January amid high levels of migrant encounters at the southern border, the rule allows the United States to presume migrants attempting to enter the United States are ineligible for asylum if they do not use lawful pathways of entry.

The presumption of ineligibility will bar entry to all those who travel to the Untied States without receiving authorization to do so, as well as those who do not schedule the time and place of their arrival via the Customs and Border Protection One smartphone application.


Those who cannot use the app must must establish that they could not access it due to "significant technical failure." If they had traveled through a third country to reach the United States, they most show that they had applied and were reject for asylum in that nation.

The dual departments added that this presumption can be appealed "only on exceptionally compelling circumstances."

The rule also permits the United States to remove people who do not "establish a reasonable fear of persecution or torture in the country of removal."

Homeland Security Secretary Alejandro Mayorkas described the rule Wednesday as one that will undermine efforts of human smugglers by promoting legal migration.

"This administration has led the largest expansion of legal pathways for protection in decades, and this regulation will encourage migrants to seek access to those pathways instead of arriving unlawfully in the grip of smugglers at the southern border," he said in a statement.

Human rights and immigration advocates have been calling for the rule to be rescinded since it was first announced, describing it as a copy of a Trump-era asylum ban that was repeatedly rejected by the courts.

Nearly 300 civil, human and immigrant rights groups wrote Biden a letter in January urging him not to follow through with the measure.


On Wednesday, U.S.-based Human Rights First condemned the decision to finalize the rule as "an abysmal abdication of leadership and a legal, moral and political mistake."

"The use of this new asylum bar in expedited removals will turn protection screening into a sham process to rapidly deport refugees who qualify for asylum under our laws," Eleanor Acer, senior director for refugee protection at Human Rights First, said in a statement.

"The Biden administration should rescind this rule and instead focus on humane and effective measures like sharply increasing asylum capacity at ports of entry, escalating adjudication and humanitarian reception capacities and strengthening regular pathways to the United States."

Instituted in March of 2020 by the Centers for Disease Control and Prevention under the previous Trump administration, Title 42 has since been used to rapidly expel more than 2.8 million migrants and asylum seekers, according to U.S. Customs and Border Protection data.

After Thursday, the Biden administration will return to processing all migrants under Title 8 immigration authorities of the U.S. code, and officials are warning those who may attempt the dangerous journey north that this does not mean they will be allowed to enter the United States.

Authorities have warned that those found inadmissible under Title 8 due to irregular immigration face stiffer consequences than under Title 42, such as a five-year entry pan and potential criminal prosecution for repeated attempts to cross the border.


Biden has been dogged during his presidency by criticism from both Republicans and immigration and human rights advocates over his immigration policies.

While GOP lawmakers chastise him over not doing enough to stymie migrants from attempting to enter the country, the immigration and human rights advocates criticism him over his failed efforts to keep Title 42 in place and the measures he has sought to put in place in anticipation of its absence.

"At a time of unprecedented global displacement, the Biden administration has elected to defy decades of humanitarian protections enshrined in U.S. law and international agreements," Lee Williams, chief programs officer at Lutheran Immigration and Refugee Service, said in a statement criticizing the new finalized law.

"Forcing persecuted people to first seek protection in countries with no functioning asylum systems is as ludicrous as it is life-threatening. This ban is Title 42 in sheep's clothing, and it will have a devastating impact on children and families already uprooted by unimaginable violence, persecution, poverty and climate disaster."

On Wednesday, Mayorkas's department also unveiled a new digital ad campaign to counter the disinformation that is being allegedly peddled by smugglers ahead of Title 42's expiration.

Immigration and Customs Enforcement also said Wednesday that a new policy concerning families seeking asylum or express fear of persecution or torture will see GPS ankle monitors used with some migrants who will also be subjected to a curfew.


This all comes after less than two weeks after Mayorkas unveiled new measures, including the creation of so-called Regional Processing Centers to be erected within the border of Western Hemisphere nations in an effort to expedite prescreening of individuals for lawful entry prior to them reaching the U.S. southern border.

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