*Individuals who unlawfully cross the U.S. Southwest border will generally be processed under Title 8 expedited removal authority in a matter of days
*will be barred from reentry to the United States for at least five years if ordered removed
*would be presumed ineligible for asylum under the proposed Circumvention of Lawful Pathways regulation, absent an applicable exception
United States Department of State (State) and Department of Homeland Security (DHS) on Thursday announced sweeping new measures to further reduce unlawful migration across the Western Hemisphere, significantly expand lawful pathways for protection, and facilitate the safe, orderly, and humane processing of migrants.
The State Department’s Spokesperson’s office said in a statement that like many other COVID-era public health measures, the CDC’s temporary Title 42 public health order will also come to an end, but that the lifting of the Title 42 order does not mean the border is open.
When the Title 42 order lifts at 11:59 PM on May 11, the United States will return to using Title 8 immigration authorities to expeditiously process and remove individuals who arrive at the U.S. border unlawfully, according to the statement.
These decades-old authorities carry steep consequences for unlawful entry, including at least a five-year ban on reentry and potential criminal prosecution for repeated attempts to enter unlawfully, it stated.
“The return to processing under Title 8 is expected to reduce the number of repeat border crossings over time, which increased significantly under Title 42. Individuals who cross into the United States at the southwest border without authorization or having used a lawful pathway, and without having scheduled a time to arrive at a port of entry, would be presumed ineligible for asylum under a new proposed regulation, absent an applicable exception.
“The measures announced today will be implemented in close coordination with regional partners, including the governments of Mexico, Canada, Spain, Colombia, and Guatemala. They draw on the success of recent processes that have significantly reduced unlawful border crossings through a combination of expanded lawful pathways and swift removal of those who fail to use those lawful pathways.
“Importantly, these measures do not supplant the need for congressional action. Only Congress can provide the reforms and resources necessary to fully manage the regional migration challenge. Since taking office, President Biden has continually called on Congress to pass legislation to update and reform our outdated immigration system.
“State and DHS are taking action with the tools and resources available under current law, but Congress’s failure to pass and fund the President’s plan will increase the challenge at the southwest border.”
According to the State Department, the measures announced today include:
Imposing Stiffer Consequences for Failing to Use Lawful Pathways
The transition back to Title 8 processing for all individuals encountered at the border will be effective immediately when the Title 42 order lifts. Individuals who unlawfully cross the U.S. Southwest border:
- will generally be processed under Title 8 expedited removal authority in a matter of days
- will be barred from reentry to the United States for at least five years if ordered removed; and
- would be presumed ineligible for asylum under the proposed Circumvention of Lawful Pathways regulation, absent an applicable exception
To avoid these consequences, individuals are encouraged to use the many lawful pathways the United States has expanded over the past two years. Today, the United States is announcing additional lawful pathways, including:
Expanded Access to the CBPOne App to Appear at a U.S. Port of Entry. When the Title 42 order lifts, migrants located in Central and Northern Mexico will have access to the CBPOne mobile application to schedule an appointment to present themselves at a port of entry rather than trying to enter between ports. CBPOne will make additional appointments available, and the use of this tool will enable safe , orderly, and humane processing.
New Family Reunification Parole Processes. DHS is creating new family reunification parole processes for El Salvador, Guatemala, Honduras and Colombia. The agency is also modernizing existing family reunification parole processes for Cuba and Haiti.
These processes, once finalized, will allow vetted individuals with already approved family-based petitions to be paroled into the United States, on a case-by-case basis. The U.S. Government will deliver timely and efficient authorization for those approved and vetted to travel. Individuals paroled into the U.S. under these processes would be eligible to apply for work authorization.
Double Number of Refugees from Western Hemisphere. The United States will commit to welcoming thousands of additional refugees per month from the Western Hemisphere – with the goal of doubling the number of refugees the United States committed to welcome as part of the Los Angeles Declaration on Migration and Protection.
To achieve this goal, the United States is building on processing efficiencies achieved over the last two years and further increasing resources and staffing to the U.S. Refugee Admissions Program in this region.
In addition, the United States will continue to accept up to 30,000 individuals per month from Venezuela, Nicaragua, Cuba, and Haiti as part of the expanded parole processes announced earlier this year.
Encounters at the border for these nationalities plummeted when DHS expanded the parole programs. The United States will also continue to utilize available authorities to continue to strengthen and expand additional lawful pathways.
Humanely Managing Migration Flows with Regional Partners
A border-only approach to managing migration is insufficient. From day one, the Biden-Harris Administration has approached migration as a regional challenge – rebuilding relationships with key partners across the Western Hemisphere, bringing 20 world leaders together through the Los Angeles Declaration on Migration and Protection to jointly manage migration flows, and securing commitments from across the Western Hemisphere to expand lawful pathways, address root causes, and step up enforcement.
Building on these efforts, the United States is joining forces with partners across the Western Hemisphere to:
Open Regional Processing Centers Across the Western Hemisphere to Facilitate Access to Lawful Pathways. In a historic move, the United States alongside other countries of the Los Angeles Declaration today announced they will establish Regional Processing Centers (RPCs) in key locations throughout the Western Hemisphere to reduce irregular migration and facilitate safe, orderly, humane, and lawful pathways from the Americas.
The first centers will be established in several countries, including Colombia and Guatemala, in the region. Individuals from the region will be able to make an appointment on their phone to visit the nearest RPC before traveling, receive an interview with immigration specialists, and if eligible, be processed rapidly for lawful pathways to the United States, Canada, and Spain.
Launch an Aggressive Anti-Smuggling Campaign Targeting Criminal Networks in the Darien. Panama, Colombia and the United States reached an historic agreement to launch a 60-day surge campaign to address the unprecedented migration through the dangerous Darien corridor.
The campaign officially launched on April 20 and is focused on disrupting criminal networks that facilitate the illicit movement of people and increasing state presence in the jungle.
As the authorities reclaim control of this region and root out criminal actors, migrants are urged to wait and avail themselves of safe, orderly lawful pathways, including new pathways announced today.
Increase Removals of Those Without a Lawful Basis to Stay. The United States, in coordination with our regional partners, has dramatically scaled up the number of removal flights per week. That includes flights to Cuba, which resumed this week following a pause due to COVID-19.
The number of weekly flights will double or triple for some countries. With this increase in removal flights, migrants who cross the U.S. border without authorization and who fail to qualify for protection should expect to be swiftly returned with at least a five-year bar to returning.
The United States is also collaborating with foreign partners to crack down on criminal networks that charge enormous fees to migrants to facilitate migration by air. Individuals who arrive at international airports in the region with the intent to cross the U.S. border unlawfully should expect to be turned around and subject to consequences. DHS has also made those who attempt to migrate irregularly to the U.S. via dangerous maritime means ineligible for the parole processes announced in January.
Combat Smuggler Misinformation. Smugglers are already ramping up misinformation campaigns to profit off of vulnerable migrants ahead of the return to Title 8 processing.
To combat this misinformation, State’s diplomatic missions across the hemisphere are broadcasting accurate information about U.S. migration laws and engaging with a wide spectrum of regional audiences to counter smuggler narratives. It will be incumbent upon all elected leaders and stakeholders – regardless of political affiliation – to work to counter smuggler misinformation and propaganda, not contribute to it.
Facilitating Safe, Orderly, and Humane Processing of Migrants
The measures announced today aim to change the incentive structure that drives individuals to flee their countries and seek unlawful immigration pathways. They facilitate safe and orderly access to lawful pathways throughout the Western Hemisphere so that fewer migrants are putting their lives at risk to arrive directly at the Southwest border.
To facilitate the safe, orderly, and humane processing of migrants who arrive at the Southwest border, the United States will:
Expeditiously Process and Remove Individuals Who Arrive at the Southwest Border and Don’t Have a Legal Basis to Remain. Individuals in expedited removal proceedings and who express a fear of persecution in their country of nationality or designated country of removal will be referred to a U.S. Citizenship and Immigration Services officer with specialized asylum training for a credible fear interview.
Interviews of single adults, as well as any immigration judge review of a negative determination, will take place while the noncitizen is in DHS custody, either in a U.S. Border Patrol or U.S. Immigration and Customs Enforcement facility.
By expediting review of these asylum claims, DHS will be able to provide relief more quickly to those who are eligible and to more quickly remove those who are not.
To support faster processing, DHS is increasing its holding capacity, expanding capabilities and technologies, installing hundreds of phone lines and privacy booths to conduct credible fear interviews (CFIs)and increase access to counsel, and schedule CFI interviews within 24 hours.
DHS and the Department of Justice (DOJ) are also surging asylum officers and immigration judges, respectively, to complete immigration proceedings at the border more quickly. Like single adults, families will be placed in removal proceedings, which will include expedited removal.
DHS is currently focused on utilizing its Alternatives to Detention program for families, including GPS monitors and enhanced supervision, such as curfews, and expanding case management services. More stringent measures may be used for those who do not comply. Like single adults, families with final orders of removal will be removed.
Surge Additional Resources. DHS is significantly scaling up its air and ground transportation capabilities to quickly remove migrants when warranted or transport migrants to less-congested border sectors for further immigration enforcement proceedings.
DHS is also making an additional $15 million available for its Case Management Pilot Program to provide voluntary case management and other services to noncitizens to increase compliance with court dates and accelerate processing times.
Services will be made available to certain noncitizens enrolled in DHS’s Alternatives to Detention program, which is an important tool used by DHS for individuals and families as they await the outcome of immigration proceedings.
Manage Resource Needs. The initial actions announced today are necessary to prepare the return to Title 8 processing and increased encounters along the Southwest Border but are not in and of themselves sufficient to address the resources requirements DHS will incur after Title 42 is lifted.
DHS notified Congress of its intent to reprogram funds within its budget to support other emerging requirements across DHS. The reprograming of existing funds to address the immediate shortfalls in border operations should not be interpreted as adequate for the longer term needs of securing our border and enforcing our laws.
The Administration requested $4.9 billion for these functions but received only $2.7 billion in the Omnibus passed in December, which is not an adequate level to address both the anticipated short-term surge following the end of Title 42 on May 11 and the longer-term constraints of operating within a broken immigration system that Congress has not updated for decades.
While the Department is prudently utilizing the limited funding Congress has provided to prepare for the post-Title 42 environment, this notification of repurposing existing funds is only a fraction of what DHS will ultimately need.
Reduce Impacts on Border Communities. DHS has awarded more than $135 million to communities to date this fiscal year and will award an additional $290 million in the coming weeks.
The Administration is also ramping up coordination between state and local officials and other federal agencies to provide resources, technical assistance and support, including through regular information sessions with stakeholders to ensure that the program is broadly understood and the funds are accessible.
The Administration will continue to mobilize faith-based and non-profit organizations supporting migrants, including those providing temporary shelter, food, transportation, and humanitarian assistance as individuals await the outcome of their immigration proceedings.
The Biden-Harris Administration has been preparing for the eventual lifting of the Title 42 public health order for well over a year. In addition to working to combat misinformation and coordinating with local communities and NGOs, DHS began contingency planning efforts to prepare for the eventual lifting of Title 42.
In February 2022, DHS formally stood up the Southwest Border Coordination Center, which leads the planning and coordinating of a whole of government response to the anticipated increase in border encounters.
In April 2022, Secretary Mayorkas issued the DHS Plan for Southwest Border Security and Preparedness, laying out a six-pillar plan to manage an increase in encounters once Title 42 is no longer in effect, and updated the plan in December 2022.
Notwithstanding these efforts, we expect the days following the end of Title 42 public health order will be challenging and that encounters will increase for a time, as smugglers will seek to spread disinformation to capitalize on this change.
Through the approach described below and the work of our outstanding personnel, the Biden-Harris Administration will do everything within its authority to manage this challenge, but until and unless Congress delivers on the immigration reform measures President Biden requested on his first day in office, the United States’ immigration system will remain broken.
