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On May 11, the Biden administration is expected to end the controversial Title 42 pandemic policy—the public health law invoked during the Trump administration to prevent border authorities from holding migrants in congregant settings, ostensibly to prevent the spread of COVID-19.
The Trump era rule, kept by the Biden administration, has allowed immigration authorities to rapidly turn back hundreds of thousands of people without giving them a chance for asylum. According to data from U.S. Customs and Border Protection, Title 42 has been used as of last month to expel more than 2.8 million migrants and asylum seekers.
Now, as the Biden administration prepares for the end of Title 42 and a possible surge of migrants seeking entry at the border, the U.S. laws revert back to those covered under Title 8.
“Title 8: Aliens and Nationality” of the Code of Laws of the United States is the body of federal law dealing with immigration and nationality, comprises relevant statutes adopted by Congress, and contains all of the country’s immigration laws. Under Title 8, border authorities will have to return to following the laws created by Congress.
Among its numerous chapters and sub-sections, Title 8 includes tougher rules about who is admissible to the country or eligible for a visa; criminal penalties for crossing the border without inspection or re-entering unlawfully after deportation; expedited removal of migrants who are deemed inadmissible; and the nation’s asylum laws.
Simply put, under Title 8, any immigrant who crosses the U.S. border illegally, between the ports of entry, and who is determined not to have a legal basis to remain will be processed for removal. Title 8 allows for the expedited removal of all individuals who are ineligible for asylum due to criminal backgrounds or are not able to prove their legal basis to enter to stay on U.S. soil. Further, those who are repeatedly caught attempting to enter the U.S. without authorization could be prosecuted criminally, as they frequently have been in the past.
However, under Title 8, migrants typically can seek asylum in the U.S. by citing a credible fear of persecution or other threats in their home country. However, a return to Title 8 enforcement practices will not necessarily mean that migrants would be allowed to enter and remain in the country. Many of them would still have to wait in Mexico until their asylum claims can be decided—the result of a Trump administration policy that the Biden administration has kept in place under court order.
Title 8 guided the Border Patrol’s enforcement strategies at the southwest border pre-pandemic and is expected to underpin enforcement after May 11.
It’s a tough law. “When you are removed from the country (under Title 8), you are removed for five years or up to 20, depending how many times you enter illegally,” said El Paso Border Patrol spokeswoman Valeria Morales. “If you want to apply for admission, you can’t.”
Homeland Security Secretary Alejandro Mayorkas reiterated this in a press conference last week. “The return to processing migrants under Title 8 authorities will be swift and immediate,” he said. “Let me be clear: Our border is not open and will not be open after May 11.” (Amsterdam News)
