The New York Times reported yesterday that the Biden administration is considering a new set of “migrant restrictions similar to Trump policies” on the southern border including a new asylum ban and increased migrant prosecutions. This followed an Axios report detailing these and other policies under consideration as the administration prepares to lift the Title 42 mass expulsions policy, including changes to the expedited removal process that would result in migrants again being returned to dangerous conditions in Mexico. 

National Immigrant Justice Center Executive Director Mary Meg McCarthy responded to the reports:

"For two years we have watched as the Biden administration has grown increasingly punishing in its approach to immigrants and asylum seekers. The policies reported to be under consideration today — a reinvented asylum ban, ramped up prosecutions, and augmented expedited removal — were invented and engineered by Donald Trump and Stephen Miller to terrorize asylum seekers. These policies belong in a shameful chapter of our history books, not on the desk of a sitting cabinet member. We implore the president and Secretary Mayorkas to heed the lessons we have learned over and over again: policies designed to deliver harm to asylum seekers and immigrants only cause unimaginable suffering to migrants who have already endured too much. Do not let these policies be your legacy. Do not give in to fear and hate. Restore access to asylum at the border and proudly recommit to the United States’ obligation to serve as a haven for those in need of sanctuary.

"The Biden administration’s consideration of these punitive policies comes as it works to wind down the Title 42 mass expulsions policy, under federal court order. The history of the Title 42 policy and the context behind the policies currently under consideration by the Biden administration is complex. We answer some frequently asked questions here."

What is Title 42 and what is its current status? 

In 2020, the Trump administration weaponized an old provision of the Public Health Service Act, commonly known as Title 42, to all but end asylum processing at the southern border. The Biden administration continued that policy for nearly a year and a half, before announcing it would end the policy in April 2022. The Title 42 policy was never rooted in legitimate public health concerns, and instead advanced the racist trope that falsely equates migration with contagion. Experts found no public health rationale for this ban on asylum seekers; epidemiologists, former CDC officials, and public health experts denounced the “junk science” behind the expulsions.

Nonetheless, litigation by anti-immigrant state governments kept the expulsion policy thriving, and in an alarming about-face the Biden administration expanded the policy’s application in October 2022 to include most Venezuelan asylum seekers. Last month, a federal court ruled the policy unlawful and vacated it on a nationwide basis; as it currently stands, the government must end the expulsions by December 21, 2022. Anti-immigrant state governments continue to seek to derail this end date, fueling racist narratives that people seeking protection (primarily Black, Brown, and Indigenous) are “invading” the United States to “replace” its domestic (white) population.

What does the end of Title 42 have to do with the new policies being considered?

The end of the Title 42 expulsions policy provides the Biden administration with the opportunity to finally restore access to asylum at the southern border and focus on much-needed improvements to the U.S. asylum system. As the administration itself has stated, the United States has the capacity and resources to reopen ports of entry to people seeking protection. Border communities and service providers too stand ready. Existing border reception centers work tirelessly to provide arriving families with voluntary respite, social support services, legal orientation, and transportation to their final destinations.

Tragically, however, the administration has not taken a stand in support of asylum seekers and the asylum system. Instead, reports broke soon after the court decision that the Biden administration is planning to “double down” on an approach to border policy that delivers punitive “consequences” to arriving migrants in order to prevent future migration. NIJC’s transparency team uncovered official documents revealing the Biden administration’s continued embrace of this approach last March and we are alarmed to see it becoming the de facto formal policy of the Biden administration.

Deterrence-based border policies have never been shown to actually decrease migration. They have consistently, however, been proven to deliver death and violence to the migrants caught in their web.

What are the policies the administration is reportedly considering?

The administration is reported by Axios and The New York Times to be considering: (1) significantly increasing prosecutions for unauthorized entry and reentry, the same prosecutions that were used by the Trump administration to enact the family separation policy; (2) expanding the reach and impact of expedited removal processes by returning Venezuelan migrants to vulnerable conditions in Mexico; and (3) enacting a new version of the Trump-era “transit ban” that bars people from asylum if they failed to seek and secure protection in Mexico or other countries of transit. Following are additional details and resources regarding these proposals:

1. Increasing migrant prosecutions 

The laws used to prosecute people for entering or reentering the U.S. without permission originate from a law passed in 1929 during the height of the eugenics movement to further racist and white supremacist ideology. The laws continue to disproportionately impact Latinx populations, while fueling mass incarceration along racial and ethnic lines. Prior administrations have used immigration prosecutions as part of decades-long failed project to impose cruelty and suffering as a “consequence” for people seeking to enter the United States. The Trump administration surged prosecutions to rip families apart with the aim of scaring away asylum seeking families. These programs fail to stop people from crossing the border, but instead cause deaths, separate countless families, and undermine asylum rights.

Under the Biden administration, prosecutions for immigration violations have already been on the rise. In April 2022, DHS released a border plan stating that the administration was focusing on “administering consequences for unlawful entry, including removal, detention, and prosecution.” But the logic is flawed; punitive border measures drive desperate asylum seekers into dangerous terrain to avoid detection, to the benefit of organized criminal smuggling networks and at the expense of human lives. Historic migration data shows that attempts to deter migration through prosecutions and other punitive measures are ineffective. The government’s own studies have shown that the metrics used to defend migration-related prosecutions are flawed, and scholars have for years dispelled the myth that punitive border measures deter would-be migrants.

2. Expanding the Venezuelan parole program

In October 2022, the Biden administration announced a parole program limited to 24,000 Venezuelans with supporters and means to travel to the United States. All who fail to meet the new criteria, and travel by foot to the U.S. border without permission, are subject to “expulsion or removal” under this Biden policy. This policy change resulted in a 100-fold increase in Venezuelan expulsions, which averaged 59 per month in fiscal year 2022 and now near 5,900 as of October 2022.

With the end of Title 42 on the horizon, reports confirm that as the administration phases out its use of expulsions it is not halting its plans to send Venezuelan asylum seekers to Mexico — it will do so now via expedited removal instead of expulsions. DHS is reported to be contemplating increasing the 24,000 cap for Venezuelans seeking parole, while subjecting Nicaraguans to a similar punitive program. However, parole programs are no substitute for ensuring access to asylum at the border. Returning Venezuelan, Nicaraguan, and other migrants to Mexico where they have no ties and no access to protection will result in the very same rates of death, assault and violence as those endured by migrants expelled under Title 42 or returned to Mexico under the “Return to Mexico” program.

3. Enacting a new asylum ban

In July 2019, the Trump administration published a regulation barring asylum seekers from accessing asylum in the United States unless they were denied protection in a country they traveled through en route to the United States. This ban was widely considered to be a centerpiece of the Trump administration’s efforts to seal the southern border to asylum seekers, given the on the ground impossibilities of seeking protection in most transit countries.

What is perhaps most baffling is that the Trump administration’s transit ban was ruled unlawful by two separate courts, the D.C. District Court and the Ninth Circuit Court of Appeals. The Ninth Circuit found the rule to be inconsistent with U.S. asylum law, pointing to the lack of any meaningful safe options in Mexico or other common transit countries, and reminding the government of the “long line of cases” holding that failure to apply for asylum in a transit country “has no bearing on the validity of a [person’s] claim for asylum in the United States.” Attempting to refashion this extremist policy would mean flouting the fundamentals of asylum and refugee law and embracing the Trump administration’s lawless approach to border policy.

NIJC calls on the Biden administration to end Title 42 and to immediately halt consideration of cruelty-based deterrent border policies — including migrant prosecutions, the rampant use of expedited removal and outsourcing of asylum obligations, and any processes that will further choke access to asylum at the border. The United States has the duty and resources to process people seeking protection at the border safely and in accordance with domestic and international law.

Read more from NIJC: 

• Five Ways that Immigration Prosecutions are Ineffective and Deadly
• Fact Sheet: Immigration Prosecutions by the Numbers
• The Venezuela Parole Program Excludes More than Protects: An Update on Biden’s Title 42 Asylum Ban
• Newly Released Records Show Abusive Policies Continue Under Guise of Deterrence 
• 5 Facts About Title 42: Why Congress Should Not Codify the Trump-Era Expulsion Policy