Title 42 ended on May 11 at 11:59 p.m., upon which time the pre-COVID Title 8 immigration procedures resumed. DHS estimates that border officers will process up to 11,000 individuals daily after Title 42 ends.
- Title 42 was implemented in March 2020 as a COVID mitigation policy that allowed swift expulsion of migrants attempting entry into the United States. Under Title 42, many migrants repeatedly attempted to enter the country because there was no penalty for individuals who illegally entered and were deported.
- Title 8 provides broad guidance of immigration law, including asylum and expedited removal. In addition, under Title 8, there are criminal penalties for border crossings, including a 5-year ban and criminal charges.
- According to public data from CBP, 1.1 million migrants were encountered at the US southern border between October 2022 and March 2023; Sixty percent were processed under Title 8.
The Biden administration has introduced other programs and policies intended to limit the number of migrants who may be eligible for asylum and to speed up processing.
Department of Homeland Security
In the lead-up to the end of Title 42, DHS has prepared for a significant increase in migrants at the southern border. As a result, the administration has introduced new policies, most notably leaning on parole, to discourage irregular migration. On Thursday, as Title 42 ended, DHS Secretary Alejandro Mayorkas said that encounters at the borders with migrants from Cuba, Haiti, Nicaragua, and Venezuela had decreased by more than 90%.
Post-Title 42, DHS is implementing a new asylum policy that will make migrants arriving at the southern border ineligible for US asylum if they have not already applied for and were denied asylum protections in a third country or if they have not scheduled an appointment through the CBP One app.
Litigation
Florida federal judge T. Kent Wetherell II blocked the Biden administration’s post-Title 42 release policy that the administration said was needed in order to handle the migrant surge at the border. The DHS policy would allow border officials to temporarily release migrants with instructions to report to immigration officials at a later date. Judge Wetherell ruled that the DHS policy is “materially indistinguishable” from a policy he struck down on March 8 in a different challenge.
Immigration and Customs Enforcement (ICE)
Processing Family Units: ICE’s Enforcement and Removal Operations (ERO) announced on Thursday, May 11, the Family Expedited Removal Management (FERM), a new process for family units apprehended at the Southwest Border who are processed for expedited removal and indicate an intention to apply for asylum or express a fear of persecution or torture.
- FERM will place certain heads of households in family units on Alternatives to Detention (ATD) technology — a GPS ankle monitor — for continuous monitoring and subject them to a curfew.
- According to the statement, FERM is designed to ensure family units in the credible fear process participate in a timely credible fear interview with USCIS and any requested review by an immigration judge without being detained.
- Families who receive a final negative credible fear determination will generally be removed from the United States within 30 days from processing into expedited removal and referral to USCIS.