US immigration: The return to title 8

Contributor: Tamara Anaie, EY Law LLP

New and steeper obstacles and consequences to asylum seekers.

In Brief

• “The border is not open” — US immediately replaces Title 42 with even stricter border processing directives for US immigration officials.
• This regulation violates international human rights law and US treaty obligations.
• Risk of overspill to the Canadian border, where many refugees are also being denied entry.

The lift of Title 42 and what’s to come next

Few issues in contemporary political discourse in the United States can elicit such emotional reactions as that of the strain experienced from undocumented people heading towards the southern border. The numbers seeking entry are climbing quickly, and test the limits of US immigration law. Such an environment has given rise to search for a sustained solution, or at least an approach to a solution, that could be both sustainable and achieve popular support. US authorities are now looking to establish and apply yet another approach to square this circle.

On May 11, 2023, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) reverted to processing asylum seekers using national immigration laws outlined in Title 8 of the US Code, but with new impediments. The new directive outlined in the “Circumvention of Lawful Pathways” regulation (the regulation) to US port of entry inspectors is intended to further filter the high number of asylum seekers expected to cross the border, as it follows the lifting of the Centers for Disease Control’s (CDC’s) Title 42 Public Health Order respecting COVID-19 pandemic restrictions.¹

Since March 2020, Title 42 has denied refugees seeking entry at the US southern border any opportunity for processing unless they have previously secured proper travel documents. Moreover, it has done so without affording such individuals any protections owed under Title 8 of US immigration law. The US border officials were not mandated, for example, to inquire of asylum seekers as to whether they feared returning to their home country — a crucial question in determining one’s eligibility to seek asylum protection in the US.²

In a similar way, the regulation added to Title 8 processing will continue to limit refugees’ ability to seek asylum at the US southern border, but its underlying premise is no longer the threat of COVID-19, but rather the threat of numbers. This means that the border is still not open, as the Secretary of Homeland Security Alejandro Mayorkas reminds asylum seekers.³

The new regulation is now actually expelling asylum seekers under Title 8 of the US Code, the same Code that is supposed to afford these migrants the protection to seek asylum. This means that now, under Title 8 and the new regulation, individuals who cross into the US at the southwest border unlawfully, and without having scheduled a time to arrive at a port of entry using the CBP One app, will generally be processed under Title 8 expedited removal authority in a matter of days and will be barred from re-entry to the US for at least five years if ordered removed.⁴

Further, there is now a new presumption of asylum ineligibility for refugees at the southern border who neither:

• Avail themselves at a US port of entry with a pre-scheduled appointment made through the CBP One app
• Seek asylum and receive a formal denial of protection in a country through which they travelled⁵

These presumptions could only be rebutted by demonstrating exceptionally compelling circumstances by a preponderance of the evidence if, at the time of entry, the asylum seeker or accompanying family member had an acute medical emergency, faced an imminent and extreme threat to life or safety, was a victim of a severe form of trafficking, or was an unaccompanied child.⁶

The new regulation is being presented as a solution to the immigration crisis faced at the southern US border, but it seems to be doing more harm than good. Since it took effect on May 11, there has been a significant drop in the numbers of crossings at the southern border, suggesting that the regulation limits the ability of refugees to seek asylum in the US.⁷

The proposed regulation threatens international human rights law and US immigration law

The US is a signatory to the 1967 Protocol Relating to the Status of Refugees, which binds parties to the United Nations Refugee Convention. This obligates the US to comply with the principle of non-refoulement — which refers to the obligation of governments not to return a person to a country where they are at risk of being subjected to persecution, torture or other cruel or inhumane treatment.⁸  The US Refugee Act also codified the prohibition against returning refugees to countries

where they face persecution.⁹

The regulation threatens both this principle as well as the US law of non-refoulement since, by overtly and specifically limiting the ability of asylum seekers to seek resettlement, the US is indirectly returning them to countries where they might be subject to persecution.¹⁰

Ultimately, the regulation limits an asylum seeker’s eligibility to seek protection simply based on how they enter the US and what other countries they transited through. Based on the international treaties the US has signed and by which it is bound, neither of these considerations is a relevant factor in determining one’s credible fear of persecution — the underlying eligibility for establishing asylum.¹¹

Limiting refugee rights based on what other countries they transited through

The US Refugee Act has long provided limited exceptions whereby an asylum seeker may be denied asylum based on certain clear factors. These factors include travel through another country, but only apply when an asylum seeker was either “firmly resettled” in another country — defined to mean the person was eligible for or received permanent legal status in that country — or if the US has a formal “safe third country” agreement with that other nation. In such cases, refugees, passing through or established in that country, would be deemed to be safe from persecution and have access to fair asylum procedures in that foreign location, and thereby could be turned away from “asylum shopping” in the US.16

However, the regulation radically expands the scope of lawful disallowance of a refugee claim. It creates the presumption of asylum ineligibility for refugees at the southern border simply because they did not apply for and receive a formal denial of protection in a country through which they traveled. The regulation is not relying on whether the asylum seeker “firmly resettled,” or even if the country they transited through is designated as a “safe third country.” It only relies on the failure to secure, in improbable circumstances, a piece of bureaucratic paperwork. Perhaps even more pointedly, the US has designated only Canada as a “safe third country.” Therefore, the concept of “safe third country” cannot be applied to the southern border of the US.

Canada-US Safe Third Country Agreement

With this regulation, not only is the US closing its doors to many asylum seekers at the southern border — it is seeking and encouraging to apply the regulation’s underlying principles to other ports of entry. The recent expansion of the US-Canada Safe Third Country Agreement (STCA) simultaneously bans entry to asylum seekers crossing from the US who are apprehended within 14 days of entering Canada.17

Before this expansion of the concept, which came into effect on March 24, 2023, Canada, a home to many refugees, was a safe haven to many vulnerable asylum seekers who were unable to seek refugee status in the US. With the new expansion of the STCA, however, there will be a large population of vulnerable refugees who will be returned to the US from Canada, only to be stuck in limbo without any asylum protections.

In consequence, the regulation, combined with the newly expanded STCA, will combine to severely limit asylum seekers’ access to refugee status in two of the most desired — and historically generous and welcoming — countries in which to seek asylum.

Conclusion

While the COVID-19 pandemic is no longer deemed an uncontrollable threat requiring extensive restrictions at international borders, similar restrictions continue to be levied against the large number of migrants arriving at the southern border. With the return of processing asylum seekers under Title 8, in tandem with the new regulation, there will now be legal ramifications and further obstacles to overcome for asylum seekers who attempt to cross the US southern border.

What’s next for mobility professionals?

• Dialogue with expats and asylum seekers in their operations.
• Take efforts to broaden awareness of these and related challenges.
• Closely monitor the effects and side effects of the regulation and hold governing bodies accountable for its shortcomings.

The views reflected in this article are the views of the author and do not necessarily reflect the views of the global EY organization or its member firms.