Rule 42 Immigration

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Rule 42 Immigration: What You Need to Know

In March 2020, the Trump administration implemented the Title 42 immigration policy that allowed the U.S. to expel asylum seekers at the border due to COVID-19. This policy affected millions of migrants and refugees who tried to cross its northern or southern border.

However, the Biden administration ended Title 42 on May 11, 2023, and returned to its pre-pandemic Title 8 law that governs asylum and deportations.

If you are seeking asylum or planning on migrating to the U.S., our attorneys at Andrew T. Thomas, Attorneys at Law, can help. Our team is committed to safeguarding your rights and providing strategic legal support to navigate the challenges of the U.S. immigration policy.

What Is Title 42 Immigration Rule and Why Was It Implemented?

Title 42 granted U.S. authorities emergency powers to expel migrants at the border for national health and security reasons. In March 2020, the Trump administration invoked 42 U.S.C. § 265 to allow border patrol agents to quickly remove migrants caught crossing illegally. This rule was supported by the Centers for Disease Control and Prevention (CDC) as a necessary measure to stop the spread of Covid-19.

Some public health experts and advocates criticized and challenged Title 42, stating that it unlawfully blocked migrants from seeking asylum and subjected them to dangers in their home country. However, some states supported Title 42.

Title 42 resulted in the expulsion of over 2.9 million people, 98% of which were attempting to cross the U.S-Mexico border, according to U.S. Customs and Border Protection (CBP).

How Rule 42 Expulsions Work

When Title 42 went into effect, migrants apprehended at or near the border were subject to expedited removal. They had no opportunity to request asylum or other forms of protection.

Here’s how it worked:

  • Border agents had the authority to decide whether to expel migrants.

  • Families with minor children and accompanied minors were also expelled, although the rule was changed later on to exempt accompanied minors from expulsion.

  • Expelled migrants were either sent back driven or flown to the nearest ports of entry.

  • Migrants who were expelled did not receive any formal removal order.

The Process of Seeking Asylum After the End of Title 42

On May 11, 2023, the U.S. government issued the Circumvention of Lawful Pathways, a new rule concerning asylum seekers who enter the U.S. through its southwest border.

Under the new rule, migrants, with the exception of unaccompanied minors, who cross the border without permission are presumed ineligible for asylum unless they have applied for and were denied asylum in a transit country. Instead, they can only seek lesser forms of protection like:

  • Withholding of removal

  • Protection under the Convention Against Torture

With the exception of those who are filing through the pathways explained below, asylum seekers are required to apply through the CBP One mobile application and schedule a screening appointment and enter their information.

Border officials will screen individuals for exemptions or credible fear of prosecution. If they qualify for asylum, they will be scheduled to appear before an immigration judge. If their asylum request is not granted, they can appeal to a federal judge.

Note, however, that this rule is currently under litigation and may be changed or removed in the next months.

Expedited Removal Asylum Process

Migrants who are in the expedited removal process, haven’t yet appeared before an immigration judge, and express fear of returning to their country can seek asylum through the USCIS credible fear screening. If the USCIS asylum officer finds that the immigrant has a credible fear, they may schedule them for an Asylum Merits Interview or issue a Notice to Appear (NTA) before an immigration judge.

Affirmative Asylum Process

Immigrants who are physically present in the U.S., either legally or illegally, can apply for asylum through the affirmative process within one year of their arrival. The application is made by filing Form I-589, Application for Asylum and for Withholding of Removal, with the USCIS. If they are eligible for asylum, they will be required to fill out Form I-94, Arrival Departure Record. However, if they don’t qualify, they will be given an NTA.

Defensive Asylum Process

Those who are going through removal proceedings in an immigration court may seek asylum as a defense against deportation. This applies to those whose affirmative asylum application was denied by the USCIS, referred by the CBP after a credible fear screening, or detained by Immigration and Customs Enforcement (ICE) for illegal entry. If you aren’t eligible for asylum or other forms of relief, you will be deported.

If you are seeking asylum in the U.S. post-Title 42, a qualified asylum lawyer can help you in the process and increase your chances of success.

What Does Ending Title 42 Mean for Migrants

The ending of Title 42 was a major policy shift in how the U.S. processed migrants at its borders.

Under Title 8, migrants can request asylum and have access to other forms of humanitarian protection, such as the withholding of removal, temporary protected status, and parole.

However, the expiration of Title 42 does not mean the U.S. border is open, nor does it mean more migrants will be allowed to enter or stay in the country. In fact, Title 8 allows the Department of Homeland Security (DHS) to deport unauthorized migrants without a hearing. It also places admissibility bars on expelled migrants for five years. Those who attempt a second unlawful entry can face criminal penalties. Title 42 doesn’t impose such sanctions.

The expiration of Title 42 also affects Mexico and other countries in the region. Mexico has agreed to accept the return of migrants who are caught crossing the U.S-Mexico border from Nicaragua, Cuba, and Haiti.

This is in addition to migrants from Guatemala, Honduras, El Salvador, and Venezuela who were already subject to deportation to Mexico under Title 42.

On the positive side of events, The U.S. has announced the opening of more legal pathways for migrants. Now migrants from Latin American nations can apply to enter the U.S. from abroad. These legal pathways include:

  • Expanding refugee admissions to 20,000 during 2023 and 2024

  • Launching CBP One, an online appointment portal for migrants in northern and central Mexico to schedule an inspection and initiate a protection claim

  • Expanding parole for qualified Venezuelans, Nicaraguans, Haitians, and Cubans.

These are intended to provide safe and orderly alternatives to irregular migration. Those successfully admitted into the U.S. may be able to adjust status to live and work here permanently. Check out our adjustment of status checklist to see if you qualify.

How Can an Attorney Help You?

Seeking asylum or other forms of protection in the U.S. is complex and challenging. It requires legal knowledge and experience. An immigration attorney can help you in the following ways:

  • Provide accurate and updated information, advice, and representation

  • Assist with the asylum application, interviews, and hearings

  • Explore other options and solutions for your case

Andrew T. Thomas, Attorneys at Law, Can Help

If you are looking for an attorney who can help you with your asylum or immigration? Talk to us at Andrew T. Thomas, Attorneys at Law. We help families reunite and immigrants settle legally in the U.S.

We know how complex immigration law is, and we are dedicating our knowledge, experience, and resources to help you. Contact us today to schedule your free consultation with an immigration attorney in Texas.