What comes next after Title 42?

The end of a Trump-era public health order brings new barriers for people seeking asylum in the US

Nearly 3 million people seeking asylum in the US have been barred from entering the country under a public health order issued by Donald Trump.

After midnight on 11 May, people who make the treacherous journey to the US-Mexico border desperately seeking a better life could end up waiting weeks or months for an appointment to hear their claims, and years to reach legal status in the US, if they get that far. If they make such an attempt outside legal barriers, they could end up losing what could be their only chance to enter the country.

With the end of the Covid-19 emergency comes the expiration of Title 42, a public health order invoked by then-President Donald Trump purportedly to prevent people from crossing the US-Mexico border during the pandemic, but wielded by the administration as a broad tool under his anti-immigration agenda.

President Joe Biden’s administration has repeatedly stressed that the nation’s southern border is closed, and would-be migrants must seek entry through an asylum process or other legal means before arriving. But asylum claims only can be made at a port of entry; people arriving at the border surrender to authorities to begin the lengthy asylum process.

Without Title 42, authorities will return to enforcement under Title 8, which outlines the process for seeking asylum, and swiftly expel people under an “expedited removal” process and ban them from trying to re-enter for another five years.

“Our borders are not open. People who cross our border unlawful and without legal basis … will be promptly removed,” US Homeland Security Secretary Alejandro Mayorkas said at a White House briefing on 11 May.

Administration officials have also repeatedly warned that smugglers and traffickers have sought to prey on vulnerable migrants and exploit them for profits by lying about the immigration process at the border.

“Smugglers at work spreading false information that the border will open. They are lying,” Mr Mayorkas said on Thursday. “Do not risk your life and your life savings only to be removed by the United States if and when you do arrive here.”:

The end of Title 42 also begins a new series of immigration policies under the Biden administration, which will presume people crossing through Mexico to reach the southern border are ineligible for asylum unless they first sought refuge from a country they passed through – or unless they made an appointment through an app run by the US government to be screened.

The app, CBP One, has been dogged by complaints of crashes, malfunctions, instability and access, with up to 1,000 appointments available for booking daily, which fill up quickly.

The US State Department also plans to open “regional processing centres” in the western hemisphere to help migrants apply for asylum before traveling towards the US.

Title 8 processing begins with a credible fear screening to determine whether people returning to their home countries could expose them to further persecution or threats. Following a screening, they are released while awaiting a court hearing for their asylum case.

More than 1.15 million people were apprehended at the southern border under Title 8 in 2022, according to US Customs and Border Protection. Another 1 million people were expelled under Title 42 within that same period.

More than 665,000 people were removed during the first half of the fiscal year, according to Mr Mayorkas.

Over the last several years, millions of people have fled Central and South American countries in the wake of economic and political collapse, food and medicine shortages, cartel threats and other dangers before making a long and dangerous journey through Central America and Mexico. Regimes in Venezuela, Cuba and Nicaragua also drove a new wave of migration, spiking encounters at the southern border over the last two years, according to US Customs and Border Protection.

Meanwhile, Republican governors in Arizona, Florida and Texas bused thousands of migrants out of their states, spending tens of thousands of taxpayer dollars to do so, in protest of what they falsely characterised as President Biden’s “open border” agenda.

For years, Democratic lawmakers have urged Congress to overhaul immigration policies and address the “broken” system that directs how people can legally enter the country, while immigration advocates have warned against relying on a punitive and carceral system that fails to address global displacement issues that are not exclusive to the southern border.

Human rights watchdogs and immigration advocacy groups have warned that new restrictions under the Biden administration, compounded by global failures to address humanitarian crises driving migration patterns, will only exacerbate an enduring problem.

Human Rights First has reported more than 13,000 kidnappings, rapes and other attacks under the Biden administration in a series of reports documenting the impacts of Title 42.

“While the end of its use could be a cause for celebration, the Biden administration decision to replace Title 42 with new onerous bars to asylum is an irresponsible detour into nativist politics that will only perpetuate the cruel and dangerous situation at the southern border of the United States,” Human Rights First president Michael Breen said in a statement.