New rules, special programs and fee hikes under Biden

By Ibrahim Aksoy


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Throughout his election campaign, President Joe Biden backed immigration rights and criticized his predecessor’s harsh actions. In his first year in the Oval Office, Biden signed executive orders to end a ban on travel to majority Muslim countries, speed up family reunification, and resume the Deferred Action for Childhood Arrivals.

In his third year in office, Biden has raised the cap on admitted refugees and introduced humanitarian parole programs to citizens of certain countries in a move to encourage legal pathways to the United States.

However, despite reversing several Trump-era immigration rulings, the administration has adapted a similar approach on the southern border to tackle illegal immigration. The “Remain in Mexico” policy and certain bars on seeking asylum have drawn criticism from immigration advocates.

The Investigative Reporting Workshop continues to track Biden’s immigration policies. A look at recent events:

Ending Title 42

The Biden White House inherited a major rule: Title 42. Former President Trump, in accordance with the Centers for Disease Control and Prevention, enacted a public health emergency order that enabled immigration authorities to expel migrants who crossed unlawfully into the United States during the early days of the pandemic.

During his first year, Biden did not consider replacing the program. However, in March 2022, he vowed to end the program within eight weeks after the CDC terminated Title 42, but U.S. District Judge Robert R. Summerhays of the Western District of Louisiana blocked the administration’s probe.

Following that decision, in November 2022, U.S. District Judge Emmet G. Sullivan of the District of Columbia ordered the administration to lift Title 42 within five weeks, effectively putting an end to the protocol. But the Supreme Court reversed the order Dec. 27.

As the global pandemic reached its third year, the White House announced Jan. 30 that the administration would allow the COVID-19 public health emergency to expire May 11. Subsequently, the Supreme Court canceled oral arguments on Title 42, referring to Solicitor General Elizabeth B. Prelogar, who said in a brief submitted to the Court that the case would soon be moot.

Several bids by the administration to abort Title 42 have been unsuccessful because of court orders and inquiries by Republican-led states. Only the end of the COVID-19 public health emergency order, it appears, will conclude the Trump-era policy.

As of March, more than 2.6 million migrants have been expelled under Title 42, comprising 47% of all removals at the southern border since it first went into effect in March 2020.

What’s next?

As Title 42 awaits its three-year stay to conclude in May, the administration prepares for a new, broader immigration plan to replace the public health emergency plan. Under the Feb. 21 announcement, the Department of Homeland Security, in coordination with the Department of Justice, unveiled its plans to halt the migration flow on the U.S.-Mexico border.

The memoranda will be used to enforce removals once Title 42 is no longer in effect. Under the new policy, migrants who enter the United States without seeking protection in a transfer country, such as Guatemala or Mexico, will not be eligible to claim asylum in the United States unless they meet an exception, which includes scheduling an appointment with an immigration officer using a mobile application or denial of asylum in a third country.

“There are strong arguments that this [proposed rule] is not a lawful restriction on asylum given the fact that the executive branch has to follow Congress’ directives,” Katherine Evans, clinical professor of law at Duke University School of Law, said.

But the Customs and Border Protection said it will fully enforce Title 8.

Title 8 is a federal statute that oversees immigration and nationality laws. It contains provisions that regulate the entry and exit of foreign nationals to and from the United States, as well as their status and rights while residing in the country.

Evans said Congress has set certain limitations regarding who is eligible to seek asylum, including expedited removal process, but it does not bar people “who come in between border ports of entry and seek asylum once in the United States.”

But Congress has not specified whether not seeking protection in a third country en route to the United States makes an individual ineligible for asylum.

The third-country rule is similar to a Trump-era transit ban, which denied asylum to individuals at the southern border who had transited through a third country. Federal courts blocked the move because “Congress had not created that restriction to asylum,” Evans said.

The new protocol mandates migrants report to border enforcement authorities using a mobile application, CBP One, before arriving at a port of entry. The application allows asylum seekers to schedule an appointment with an immigration officer if they meet the initial criteria — having a fear of persecution or torture in their home country or the countries they have traveled through.

Special programs for Latin Americans

In fiscal year 2022, migrants from four Latin American countries — Cuba, Venezuela, Nicaragua and Haiti — constituted 22.9% of all Southwest land border encounters, according to CBP data. In a response, the administration has tightened border security while introducing humanitarian parole programs for those countries.

The DHS announced Oct. 12 that it would issue up to 24,000 temporary visas to Venezuelans who have a U.S.-based financial sponsor. In January, the agency expanded the program to Cubans, Nicaraguans and Haitians, declaring it a “humanitarian parole.”

Under the parole policy, the United States would allow up to 360,000 qualifying citizens of those countries each year to reside and work in the United States for up to two years. During the first month of the policy, encounters at the Southwest border dropped by 75%.

Evans of Duke University said Title 8 authorizes the executive branch to create parole programs where “there is a high humanitarian need.”

“Congress has set up a structure that includes providing parole on humanitarian basis that the executive branch, the Department of Homeland Security, is then able to administer and so the ability to grant parole in those situations is set up by Congress,” Evans said.

Under the agreement, the United States would provide up to 30,000 visas each month to all four countries. If citizens of those countries attempt to cross the border without authorization, they will be denied a right to asylum, expelled, and potentially barred from reentering the United States.

However, the future of the parole program is under scrutiny. Shortly after the announcement, 20 Republican attorneys general filed a lawsuit against the administration to stop the program, claiming the plan is not for humanitarian purposes and does not have a public benefit.

Immigration service lacks funding, raises fees

The United States Citizenship and Immigration Services announced Jan. 3 that it would revise certain application and service fees because the current stream of revenue does not cover the agency’s expenses.

Fee changes vary depending on the application type. Employment-based visa and permanent residency applications will see an average of a 174% increase beginning March. Applications for naturalization will go up $120 while green card applications will see a $315 increase.

Low-income applicants will still be eligible to request a fee waiver. The agency also noted that it receives 96% of its funding from filing fees and not from “taxpayers in the form of Congressional appropriations.”