Despite increased rhetoric about open borders following the end of the Title 42 policy, which was used for about 3 years to rapidly expel migrants at the southern border due to the COVID-19 pandemic, the border is not open.
Ending the practice of expelling migrants under a public health order does not mean there is no border security. It simply means that border processing will revert back to existing immigration law, as it has for decades. Regulations on immigration are found under Title 8 of the U.S. law code, and were enacted as part of the Immigration and Nationality Act of 1952. There have been several revisions of the law since the 1950s, but the laws around penalties for unlawful border crossings have remained largely unchanged since the 1990s, when Congress passed the Illegal Immigration Reform and Responsibility Act. These laws have applied under multiple presidential administrations across both parties.
In addition to processing migrants using Title 8 rather than Title 42, the Biden administration also launched a stringent new asylum rule in May 2023. Under the new rule, many asylum-seekers will be presumed ineligible for asylum unless they:
- Traveled to the U.S. using one of the parole programs authorized by the Department of Homeland Security (DHS),
- Used the CBP One mobile application to schedule an appointment at a port-of-entry in advance of their arrival, or
- Sought asylum in another country in transit to the U.S. and were denied asylum in that country.
While there are some narrow exceptions, this new rule will make the barriers to claiming asylum much harder. In fact over 11,000 individuals were deported or returned to their home countries within the first week of the new rule.