Updated May 12, 2023 at 12:00 AM ET
The pandemic border restrictions known as Title 42 ended at 11:59 p.m. ET on Thursday, lifting a policy that had sharply limited access to asylum since March 2020.
In its place, the Biden administration has implemented a combination of new asylum rules and legal pathways. These measures are intended to discourage migrants from crossing the border illegally and prevent an unprecedented increase of people seeking asylum along the southern border.
The COVID-era public health emergency measure allowed for the quick expulsion of migrants at the border and nearly halted the processing of asylum applications for more than three years.
Now that Title 42 is lifted, the tens of thousands of people who have been waiting in Mexico after fleeing from violence, poverty and political instability are once again subject to decades-old immigration protocols known as Title 8.
Under those laws, individuals can no longer be turned away or deported without a screening for asylum claims. That means they'll enter the country and be placed in detention centers as they go through a process called expedited removal, which includes a credible fear interview. Those who are deemed to have valid claims will be allowed to stay in the country as their cases make their way through immigration court. Those who are not will be deported.
Regardless of the outcome, the longer processing times will likely result in a bottleneck at ports of entry and detention centers that will put a strain on federal, state and local government resources.
The return of Title 8
The return of Title 8 may be a welcome lifeline for thousands of migrants who have been stuck in overcrowded shelters or have been living on the streets of Mexican border cities, often prey to violence and exploitation.
But the longstanding protocols also carry stiffer penalties for migrants who are caught crossing the border illegally, including the possibility of a five-year ban on entry to the U.S. for migrants who are deported, as well as prosecution.
On Wednesday, the Biden administration finalized a new rule that severely limits asylum for those who arrive at the U.S.-Mexico border without first applying online or seeking protection in a country they passed through. (The rule was first announced in February and is likely to face legal challenges.)
That new rule is part of the Department of Homeland Security's efforts to assuage fears that mayhem may break out at the country's ports of entry as Title 42 sunsets. It also concedes that the recent spike in new arrivals is already putting a strain on U.S. immigration resources.
"Our plan will deliver results. But it will take time to be fully realized," Homeland Security Secretary Alejandro Mayorkas said on Wednesday.
The Biden administration rolls out new measures
Mayorkas said the new rule is part of a broader effort by the administration to discourage migrants from crossing the border illegally and create a host of new legal pathways.
Senior administration officials said Tuesday that the State Department is working on plans to eventually open about 100 regional processing centers around the Western Hemisphere, where migrants could apply for resettlement to the U.S., Canada or Spain. Two hubs are expected to open soon in Guatemala and Colombia, though officials offered no specific dates. They also said they'll be launching a new online platform for individuals to make appointments to arrive at a center near them.
Meantime, the CBP One mobile app, which migrants with limited internet access have widely complained about, transitioned to a new appointment scheduling platform. Officials said they are "significantly increasing" the number of appointments from a low of about 300 per day to 1,000. They are prioritizing people who have been waiting the longest for appointments.
Additionally, the U.S. will continue to admit 30,000 migrants a month from Venezuela, Cuba, Haiti and Nicaragua, as long as they have applied online and have secured a financial sponsor. Mexico has agreed to continue taking back the same number who cross illegally.
The administration also announced on Wednesday a new program called Family Expedited Removal Management that will help track migrant families who are seeking asylum and are released in the United States. The measure would allow immigration officials to track the head of the household via a monitoring device and require a curfew.
In recent days, 1,500 active-duty military troops have been deployed to the border as a backup for U.S. Customs and Border Protection agents. They are joining roughly 24,000 law enforcement officers and 2,500 National Guard troops are already there.
Could this be the peak?
As of Wednesday morning, nearly 28,000 migrants were in custody — far above official capacity.
"It's a lot worse than we thought it was going to be," Brandon Judd, the head of the Border Patrol union who is also a vocal critic of the Biden administration, told NPR.
Judd added: "In my worst nightmares, I would've never thought any administration would allow the border crisis to spiral out of control the way it has."
But Border Patrol Chief Raul Ortiz said officials are moving swiftly and that by midday, individuals in custody were down by several thousand, to 26,345. "So I feel like we're already making progress," he said.
Estimates of approximately 150,000 migrants waiting along the border, as reported by some news outlets, are drastically overblown, Ortiz said.
"I'm tracking between 60,000 and 65,000," he said.
Ortiz added that the record number of apprehensions — upwards of 17,000 per day — are not likely to materialize after Thursday night. He explained that only five of the nine southwest Border Patrol sectors are over 125% capacity, meaning the other four are not. The Rio Grande Valley and El Paso in Texas, and Tucson, Ariz., appear to be the most crowded.
Contrary to what several officials have stated, Ortiz believes the dramatic spike experienced over the last five or six days, driven by people rushing to get to the U.S. before Title 42 was lifted, is likely to be the peak.
Earlier this week, immigration authorities began an on-the-ground campaign to persuade people to turn themselves in — an effort to alleviate the bottleneck to come.
Mariangely Leal from Caracas, Venezuela, was one of the people who was persuaded to roll the dice. The 26-year-old crossed the border in El Paso last week, after months of trying to make an appointment on the CPB One app.
"I wanted to cross before May 11," she told NPR.
"I turned myself in [on Tuesday] at 11 a.m.," Leal said, "and by 8 p.m. I had my documents and I was released."
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