Biden expands Title 42 under new rules; app required to claim asylum at border

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President Joe Biden and his administration unveiled Thursday a series of new enforcement measures meant to curb the flow of migrants attempting to reach the U.S.-Mexico border, and in preparation for the end of Title 42, a public health rule that has allowed U.S. border officials to turn away thousands of migrants at the border.

The new measures announced Thursday expand the use of Title 42 while it remains in place, allowing the U.S. government to immediately expel migrants from Cuba, Haiti and Nicaragua back to Mexico.

At the same time, the U.S. will establish a parole program for migrants from these countries that will allow some to enter the U.S. legally. The parole program is modeled after an earlier version targeting Venezuelan migrants.

"Currently, these four countries account for most of the people traveling into Mexico to start a new life by getting to the American border and trying to cross. But instead of a safe and orderly process at the border, we have a patchwork system that simply doesn't work as it should," Biden said Thursday at the White House.

The U.S. Supreme Court put the repeal of Title 42 on hold, pending arguments to determine the legality of the rule in place since March 2020. It has been used to expel more than 2.4 million migrants at the southern U.S. border. When it started, only migrants from Guatemala, Honduras, El Salvador and Mexico were eligible for expulsion.

Migrants from other countries who are not eligible for Title 42 enforcement are processed under Title 8 of the U.S. Code, which means they have to be taken into custody and processed. They are put into deportation proceedings or released into the country under parole.

With the use of Title 42 expanding to migrants from additional countries, that makes them ineligible to claim asylum at the border, unless they go through the new parole program. There will be 30,000 slots each month for migrants from Venezuela, Cuba, Haiti and Nicaragua to apply for parole. If approved, they will receive a two-year permit that lets them work in the country, but are required to have someone in the U.S. sponsor them.

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The White House said that, effectively immediately, individuals apprehended crossing the border illegally and who are not eligible for Title 42 can be placed in expedited removal proceedings and given a five-year ban to reenter the country.

Mexico has agreed to take each month 30,000 expelled migrants from those four countries.

The impact along the Arizona border could be significant, especially in Yuma County. Up until now, nearly 95% of migrants crossing through southwestern Arizona had been ineligible to be expelled under Title 42, according to government figures, so border agents were required to take them into custody.

Migrants from the four countries singled out under the new measures last year accounted for nearly a third of encounters in Yuma County. Now, they can be immediately expelled. That could relieve some of the capacity constraints that had forced border agents to increase the number of migrants they released to the care of nonprofits in the county.

The U.S. Department of Homeland Security will oversee the new enforcement measures at the U.S.-Mexico border, which include expanding the use of the Customs and Border Protection One phone application to schedule appointments at legal ports of entry.

While Title 42 is in place, the phone app will be used to petition for humanitarian exemptions to Title 42, according to Homeland Security Secretary Alejandro Mayorkas. But once that policy goes away, the app will continue to be used to schedule appointments so that asylum seekers can present their claims at ports of entry and be inspected and processed.

"The app is designed to discourage individuals from congregating near the border and creating unsafe conditions," Mayorkas said Thursday during a news conference.

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Migrants will be able to schedule appointments at eight border crossings along the southern U.S. border; five in Texas, two in California, and the DeConcini border crossing in downtown Nogales.

Mayorkas said his department is working in conjunction with the Department of Justice to reissue a transit ban that would make someone ineligible for asylum in the U.S. if they did not seek protection "in a country through which they traveled on their way to the United States."

Ariel Ruiz, a policy analyst at the Migration Policy Institute said the announcement to expand Title 42 is aimed at stemming a recent surge of migrants from those countries, while allowing those already at the border a chance to enter the U.S.

After the U.S. began expelling migrants from Venezuela under Title 42 in October, the number of migrants arriving at the southern border from that country plummeted, Ruiz noted.

"So that is what the administration is hoping for, for Nicaraguans, Cubans and Haitians" to stop coming, Ruiz said.

The announcement comes as the Biden administration is under political pressure from Republicans to keep Title 42 in place to prevent the border crisis from worsening and under pressure from critics who want the policy ended because it prevents migrants fleeing danger from legally seeking asylum protections in the U.S.

Mark Morgan, the former commissioner for CBP under Donald Trump, criticized the announcement, saying Biden had been responsible for dismantling tools and policies that Trump had put in place to manage flows along the southern border.

“His continued attempts to deflect responsibility for the disastrous and deadly crisis are just as dishonest as the nonsensical ‘solutions’ he put forward in this speech today," he said. "Rather than be honest with the American people and set forth a strategy to reverse course to defend our nation’s borders, he doubled-down on his failed open-border policies."

Migrant advocacy organizations sharply criticized Biden for expanding the use of Title 42 and restricting access to asylum.

Mary Miller Flowers, the senior policy analyst at the Young Center for Immigrant Children’s Rights, which helps migrant children in Arizona and around the country, called Thursday's announcement discriminatory.

"Let me be clear: seeking safety is a right for everyone, regardless of race, ethnicity, country, or language," she said in a written statement. "The right to asylum should not hinge on your manner of flight from danger or your financial means. Yet, for far too long, seeking safety is treated as a privilege for a select few, and the Biden administration’s cherry-picking of who can and cannot access protection proves this."

Joanna Williams, the executive director for the Nogales-based humanitarian aid group Kino Border Initiative, said the new border measures are in direct opposition to the country's obligations.

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“The whole concept of asylum is based on protecting the most vulnerable of our communities and it's difficult for these particular programs to really reach those most vulnerable,” she said.

“You're automatically preferring the people that already have more access to power and to resources rather than the most vulnerable,” Williams added. “You're prioritizing and giving preference to people who have higher levels of education, people who have the ability to navigate complicated government forms.”

Even members of his own party joined in criticizing Biden's announcement. Sens. Bob Menendez, D-N.J., Ben Ray Luján, D-N.M., Alex Padilla, D-Calif., and Cory Booker, D-N.J., issued a joint statement expressing their disappointment at the expansion of Title 42 and plans to revive a transit ban.

Two Arizona Democrats partly praised Biden, but not about the specifics of Thursday's announcements.

Rep. Greg Stanton focused instead on Biden's planned visit to El Paso on Sunday, his first visit to the U.S.-Mexico border as president.

"I’m glad the President will be visiting Texas this weekend to see for himself what I’ve seen and heard — and communicated to his Administration: that border communities, humanitarian organizations, and law enforcement desperately need more support from and better coordination with the federal government," he said. "As I told Secretary Mayorkas last year, it seemed they had not yet received the message."

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Rep. Raúl Grijalva criticized Republicans, accusing them of politicizing the situation at the border while neglecting the needs of border communities such as the ones he represents in Nogales and Yuma.

“For too long, Republicans have refused to meet at the negotiating table on legislation that will modernize our immigration system and give non-governmental organizations and government agencies the tools and resources they need to process migrants and operate effectively in this humanitarian crisis,” he added.

Tucson Mayor Regina Romero said the Biden administration had taken "necessary" steps to address the humanitarian situation in southern Arizona and along the southern U.S. border after years of inaction in Congress to reform the country's immigration system. Her city plays a key role in the humanitarian response by nonprofits to assist migrants released under parole into the U.S.

"The City of Tucson as well as our partners on the ground need additional resources to ensure a humane, dignified process," she said. "Federal support is necessary for cities like Tucson and non-profit partners who are on the ground doing the work of supporting asylum seekers. Congress must act now and provide comprehensive, humane immigration reform.”

Republic reporters Daniel Gonzalez and Jose Ignacio Castañeda contributed to this story.