San Diego, California, USA – May 12 2023: Migrant woman holding her crying infant child at the San Diego, CA and Mexico international border wall after title 42 policy has expired. (Shutterstock)
By American Immigration Council Staff, Immigration Impact
The end of the COVID-19 public health emergency back in May meant an end to Title 42. That policy, grounded in an obscure public health law, was put in place by the Trump administration in March 2020 to stifle asylum rights at the U.S. southern border.
To prevent a post-Title 42 rise in border crossings that could be weaponized by Republicans in upcoming elections, the Biden administration concocted a new rule that went into effect on the day that Title 42 lifted. This rule, known as the asylum transit ban, is a warmed-over version of a Trump policy that blocked asylum for anyone who traveled through a third country on their way to the United States without applying for and being denied asylum there first.
Less than two months after the asylum transit ban’s implementation, we’re seeing the damage it’s causing to asylum seekers in real time.
The Biden administration’s new asylum transit ban is convoluted, but in short, it blocks most asylum seekers from accessing their legal rights to seek safety in the United States. And it disproportionately impacts the most marginalized, like BIPOC asylum seekers, LGBTQ+ asylum seekers, and everyone who lacks the resources to buy plane tickets, visas, and smartphones.
Leading up to the transition from Title 42 to the asylum transit ban, most people—Republicans and Democrats alike—expected to see a large increase in border crossings immediately after Title 42 expired.
But that’s not what happened. Instead, people rushed to cross the border before Title 42 expired. Within days after, the number of crossings plummeted. Over the last month, border apprehensions have remained stable at less than half the level they were before the of Title 42, with June on track for the second-lowest border encounters of Biden’s presidency.
Conversations with migrants at the border have shown that many people are taking a “wait-and-see” approach to the new rule. The rule is confusing, and the penalty for running afoul of it can include a five-year ban on reentry. People are waiting on the other side of the border to find out what happens to those who go before them.
And what’s happening is bad. The new rule has slashed the percentage of single adults who can pass initial asylum screenings at the border. Over the five years leading up to the pandemic—the most recent comparable period when Title 42 was not in place—83% of single adults were able to pass their screenings. Over the first month of the new policy, only 46% passed initial screenings. So far, 88% of asylum seekers who were processed under the new rule have had their chances at asylum limited by the policy. And fewer than one in ten have been able to successfully challenge the rule’s presumption that they are not eligible for asylum.
That’s no accident. The Los Angeles Times obtained a court filing in which a senior official with the Department of Homeland Security (DHS) said the quiet part out loud, writing, “As intended, the rule has significantly reduced [credible fear interview pass rates] for noncitizens encountered along the [Southwest border].” This confirms that the administration isn’t simply trying to reduce border crossings—already a dangerous goal when it comes to asylum rights—they are trying to reduce asylum screen-in rates.
In addition to the harsh barriers to asylum included in the new rule, DHS has also expanded its use of expedited asylum screening at the border. This means that many asylum seekers are now undergoing their initial asylum screenings over the phone while still in the custody of U.S. Customs and Border Patrol. This is a reworking of another draconian Trump policy that decimated asylum screening approval rates before the pandemic. Rushing trauma survivors through critical interviews over the phone without giving them any meaningful preparation time or access to counsel is likely to impact asylum screen-in rates.
While conservatives attack the Biden administration’s new approach for being too lenient, the facts show that this policy is as harmful as advocates warned it would be. Right now, the administration is prioritizing a political narrative over our legal obligation to provide due process for asylum seekers.
Asylum rights are a life-or-death matter. It’s within the government’s power to build an asylum system that recognizes that.