Immigration Update: March 2022

Preliminary data from Customs and Border Protection indicates there will be more than 200,000 encounters along the southern border this March, which would mark the highest monthly total since August. Although a large percentage of these encounters are of individuals trying to cross multiple times after being expelled, the fixation on the aggregate number will surely fuel media narratives about a perceived loss of control at the border. To the contrary—these numbers reflect the people who are being apprehended; they demonstrate a border that is both under control and more secure than ever. The increasing numbers highlight the profound challenges facing people throughout the hemisphere and add urgency to building better regional migration management systems. We are advocating for governments in the hemisphere to commit to new, collaborative strategies to better mitigate, manage, and order migration.

Against this backdrop, the administration made a series of immigration announcements this month. Your March recap includes:

• Title 42 order expelling asylum seekers to be rescinded in May.

• New rule empowers asylum officers to grant applications and streamline adjudications.
  

• U.S. commits to accept up to 100,000 Ukrainian refugees and extends TPS to Afghanistan.

• Biden administration closes one and limits capacity in three for-profit detention centers.

Title 42 Order Expelling Asylum Seekers to be Rescinded in May

The Biden administration announced that it will end the use of Title 42 on May 23, following the CDC’s reassessment of public health guidelines. The Trump-era policy used the pandemic as justification to expel asylum seekers without providing an opportunity to seek protection—in violation of both U.S. and international law. Over the past two years, the government has expelled more than 1.7 million people under the policy.

Earlier this March, pursuant to litigation and a change in CDC guidance, the Biden administration rescinded the order as it applied to unaccompanied migrant children but kept it in place for families and single adults. While exemptions and discretionary measures have been adopted to benefit some migrants arriving at the border (mainly children and recent Ukrainian arrivals), leaving it in place for others laid bare the discriminatory treatment that too often infects our immigration policies and practices. And it made painstakingly clear that use of Title 42 is not—and has never been—about public health.

With its imminent rescission, there will inevitably be an uptick in border encounters as more people make their way to the United States with their right to seek asylum now intact. These numbers, however, are both anticipated and manageable: The Biden administration has developed short-term contingency plans for a surge in arrivals and is pursuing long-term, regional-migration management strategies to enhance avenues for safe, orderly migration in the future. Title 42 served as a migration prevention tool for far too long; indeed, Human Rights First recorded 9,886 instances of torture, rape, and other violent attacks on people expelled to Mexico under the Biden administration’s continued use of the policy.

We look forward to closing this ugly chapter in American history.

New Rule Empowers Asylum Officers to Grant Applications and Streamline Adjudications

One short-term solution to increased border apprehensions is a new rule intended to enhance processing efficiency (the immigration court backlog is currently at 1.3 million pending cases). DHS and DOJ published a rule authorizing USCIS asylum officers to approve asylum applications in the first instance. Previously, the power to formally grant asylum was reserved to immigration judges. Asylum officers will not, however, be empowered to issue outright denials. If an officer rejects an asylum application, the applicant can appeal the decision and have their case heard before an immigration judge. These appeals will also be expedited: Hearings must be held within 90 days of the request.

Enabling asylum officers, who are trained experts in asylum law, to make affirmative rulings should help ease immigration court backlogs and speed up adjudication times for cases that do get referred to immigration judges. Nonetheless, we need both more resources for immigration courts and additional innovative changes to ensure fair and efficient consideration of asylum claims.

Many of our partners are appropriately concerned that shortening the current timeline for appealing initial asylum claims will make it exceedingly difficult for asylum seekers to secure legal representation and adequately prepare a complicated case. The agencies will continue to accept comments and suggestions on how best to implement this rule before it takes full effect, and we urge them to ensure that basic due process is not sacrificed for efficiency in cases that can mean the difference between life and death.

**United States Commits to Accept up to 100,000 Ukrainian Refugees and Extends TPS to Afghanistan**

The Ukrainian refugee crisis so far has served as a model of what large-scale, relatively well-managed migration can look like: the European Union quickly triggered its Temporary Protection Directive, allowing Ukrainian refugees to live, work, and study in any E.U. country for a year with possible extension. This is the first time the directive has ever been put into effect and will be an important case study for international collaborative migration-management strategies.

For its part, the United States has committed to absorbing 100,000 additional Ukrainian nationals to help Europe manage the influx. Most Ukrainians will arrive outside of the overburdened asylum and refugee systems, admitted instead through humanitarian parole (which is much faster to obtain than asylum but offers no path to permanent status) or family sponsorships. While parole is one of the few truly flexible immigration tools at the executive’s disposal—and its implementation in this moment is critical—we need more, better legal avenues to welcome those seeking protection in a systematic, orderly way.

Meanwhile, the United States is still working to resettle high numbers of Afghan arrivals from earlier this year. This March, the administration announced Temporary Protected Status for Afghans living in the United States from on or before March 15. An estimated 74,500 Afghans—the majority of which were brought in on humanitarian parole—are eligible to apply, which would help ensure they remain protected from deportation and are permitted to work beyond the expiration of parole. Emerson partner Welcome.US has been instrumental in resettling nationals of both Afghanistan and Ukraine; we encourage you to lift up their work.

Biden Administration Closes One and Limits Capacity in Three For-Profit Detention Centers

ICE will discontinue use of a detention center in Alabama and significantly scale down bed capacity at three other facilities. All four of these privately-contracted detention centers faced severe complaints of malpractice, ranging from medical negligence, and racist abuse of Black detainees, to the overuse of toxic chemicals.

Divesting from these facilities is an important and long overdue move by the federal government. It does not, however, change the larger picture: ICE currently detains nearly 22,000 immigrants in facilities across the country. The world’s largest immigrant-detention system is barely impacted by this closure and reduced capacity in some of the most egregious centers; undoing that system and its unconscionable reliance on for-profit operators will require much more dramatic action.

—

Thank you all for your continued partnership as we enter what is sure to be a politically challenging spring. It’s all too easy to get caught up in just how far we still have to go, but we are making important progress thanks to our collective efforts.

In solidarity,

Marshall Fitz
Managing Director of Immigration, Emerson Collective