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A Discussion on Title 42, Title 8, and US Asylum Policy with Anthony Fontes

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Over the past few weeks, you may have read or heard the words “Title 42” and “Title 8” in the news. While the nature of these US immigration laws is complex, they have a major impact on migrants who are seeking asylum in the US by crossing the US-Mexico border.

SIS professor Anthony Fontes sat down with us to discuss these topics and provide a clearer explanation on where US immigration policy stands after the expiration of Title 42 earlier this month.

Explaining Title 42

Earlier this month, the US ended its COVID-19 Public Health Emergency after more than three years. The end of the emergency declaration resulted in the expiration of several policies enacted at the start of the pandemic, including a section of code known as Title 42.

Title 42 is a section of US code invoked by President Donald Trump’s administration in March 2020. It is a 1944 law that gives federal authorities the ability to deny entry to the US in order to prevent the spread of communicable diseases.

Under Title 42, border patrol agents were given the authority to quickly expel migrants at the US-Mexico border by citing COVID-19 public health concerns. It’s estimated that officials turned migrants away more than 2.8 million times under Title 42, and those who were expelled were denied the right to apply for asylum in the US.

“[Title 42] has been used for the last two years as the sort of primary bulwark, legally speaking, against allowing undocumented migrants across the border,” SIS professor Anthony Fontes said.

The invocation of Title 42 by the Trump administration was the subject of several lawsuits. The American Civil Liberties Union (ACLU) and immigrants’ rights groups in Texas filed a lawsuit to end Title 42 in January 2021, “arguing the policy violated US asylum laws and that the Trump administration used the pandemic as a pretext to invoke Title 42 and use it as an immigration tool,” as reported by the Texas Tribune.

Fontes explained that migrants who crossed the border illegally under Title 42 faced a “unique legal situation.” Because the code carries few legal consequences for repeat attempts, migrants could try to cross the border several times without facing increased legal consequences.

Where US Immigration Law Now Stands

Title 42 officially expired May 11, 2023, and the US has returned to pre-pandemic immigration laws under Title 8. This section of US code contains US federal law on immigration, including asylum law, penalties for illegally crossing the border after deportation, and expedited removal policies, which Fontes described as a “fast track system for deporting people and removing them from the United States.”

In addition to Title 8, the Biden administration also has unveiled a new policy that denies most migrants asylum in the US if they did not first apply for asylum in a country they traveled through on the way to the US. This means, in practice, that any asylum seekers traveling on foot or by ground transit from countries south of Mexico would need to apply for asylum within Mexico before continuing their journey to the US.

The policy has been labeled a “transit ban” by immigration advocates. The ACLU, the Center for Gender & Refugee Studies, and the National Immigrant Justice Center jointly filed a legal challenge to the Biden administration’s policy on May 11, arguing asylum law does not allow the administration to restrict asylum access based on whether or not an individual applied for asylum elsewhere.

Fontes said the majority of people applying for asylum in the US are coming from northern Central America—specifically the nations of Honduras, Guatemala, and El Salvador.

“Logistically speaking, it makes asylum impossible for the vast majority of people who are pursuing it,” Fontes said of the Biden administration’s policy.

Fontes noted that it remains to be seen whether the Biden administration’s asylum policy is upheld in court, given the legal challenges that have already been brought forth.

The Biden administration also has proposed a new pathway for migrants to enter the US by offering humanitarian parole to certain individuals. The administration has said it will accept up to 30,000 migrants per month from Venezuela, Haiti, Nicaragua, and Cuba who have an eligible sponsor and pass background checks. Additionally, the US will allow at least 100,000 people from Guatemala, El Salvador, and Honduras who have family in the US to enter if they apply, according to the Associated Press.

“Taken together, what it seems to me that the Biden administration is trying to do in many ways is have its cake and eat it too, in the sense that it’s trying to do a show of force on the border and not look soft on immigration policy,” Fontes said. He continued: “Because that’s one of the areas that the Democrats in general, and Biden in particular, are very afraid of looking soft, but also provide a velvet glove over the iron fist that Trump was constantly pounding to keep migrants at bay.”

What Drives Migrants to Seek Asylum in the US?

Countries in northern Central America that are among the top migrant-sending countries, including Honduras, Guatemala, and El Salvador, have historically been among the nations with the highest homicide rates in the world. On top of this, Honduras and Guatemala have governments that are working “hand in glove” with powerful criminal organizations, according to Fontes.

“The combination of state weakness, corruption, and the vulnerability that comes with high levels of poverty and inequality drives many people to flee their country and seek asylum wherever they can in the United States,” Fontes explained.

Fontes said migrants fleeing violence tend to flee a combination of organized crime— gangs like MS-13 and 18th Street—and state criminal networks, which are “powerful, organized criminal groups that collude with corrupt and weak government state institutions.”

In his professional experience, Fontes said he has worked on cases where an individual living in a territory controlled by drug trafficking organizations witnessed a crime and were threatened by the criminal organizations to keep quiet. Fontes explained that because police often work closely with the criminal networks in these countries, the individual who witnessed the crime often has nowhere to turn for protection.

“People in this situation often find themselves between a rock and a hard place,” Fontes said. “There's nowhere that they can viably relocate within Guatemala or Honduras or El Salvador because they're being pursued by powerful state criminal networks, and so they have to flee the country.”

Central American migrants have been seeking asylum in the United States in large numbers since the 1970s, pushed primarily by Cold War conflicts, according to Fontes. Those initial groups of migrants who fled war decades ago mainly immigrated to New York and Los Angeles.

Fontes explained that one of the reasons migrants from Central American countries continue to come to the US for asylum is because they already have family networks that can provide shelter, information, employment, and home when they arrive.

“It makes perfect sense that people would seek asylum in the United States, not only because of the fact that it’s the richest country in the region, but also because they already have connections there that can provide them with the help they need to live a viable life,” Fontes said.

The US Asylum System

Fontes said asylum seekers who are fleeing “vague combinations of state and criminal violence” often do not fit within the basic categories of US asylum law.

“Asylum law was created to react to totalitarian states persecuting their own people—think Jews being persecuted by the Third Reich in Germany, Coptic Christians being persecuted in Egypt because of their religion, or Black people being persecuted by the South African government,” Fontes said. “It’s almost always the state as the perpetrator. But in Central America, the state is no longer the primary perpetrator of violence against its own people, but it’s not protecting anybody, and you have this rise of all kinds of non-state or state criminal networks that are essentially subsuming the work of government and persecuting people in very violent ways, but in ways that don’t necessarily fit with whom asylum law is meant to protect.”

Additionally, the US asylum system is “utterly overwhelmed” and asylum law is very “uneven” depending on where in the country you apply for asylum, Fontes noted. As an example, if a Central American migrant applies for asylum in San Francisco, there is a 75% chance of winning approval; if the same migrant applies in San Antonio, Texas, they have a 2% chance of winning approval, according to Fontes.

“Same country, same laws, utterly different matters of adjudication that come down to particular judges and the particular socio-political culture of the place,” Fontes said. “The US is not consistent with its adjudication of asylum within the bounds of our own borders.”

One of the reasons the asylum system is so overwhelmed is because funding has been stripped away from institutions that process asylum claims over the course of several presidential administrations, according to Fontes.

“Over the last 20 years, the US has invested almost nothing in building up its asylum processing system, while at the same time pouring billions and billions of dollars into militarizing the border, building the border up, and figuring out defense mechanisms to try to make crossing as difficult and dangerous as possible,” Fontes said.

“One of the solutions moving forward for example—and I don’t see it in the cards in terms of dealing with asylum and migration within the United States—is building up the asylum system itself by training and appointing more asylum judges and building out the facilities and mechanisms for adjudicating quickly and fairly asylum seekers’ claims,” Fontes said. He concluded: “Other mechanisms are necessary, and asylum can’t be the only avenue for people from Central America to get to the United States.”