US Eases Asylum Restrictions at Border Amid Legal Challenges

MCALLEN, Texas — Domingo Antonio Zeledon traveled for nearly three weeks from his hometown in Nicaragua, leaving behind his wife and three youngest children to come to the United States with his 17-year-old son.

The 39-year-old couldn't support his family on earnings equivalent to $5 a day. Even after crossing the border in Texas' Rio Grande Valley and receiving a COVID-19 test while detained, he didn't think he would be allowed to stay in the U.S. to seek asylum. Other migrants assured him he would not.

"I don't know why I was not expelled like others," Zeledon said at a shelter in McAllen, Texas, last week as he prepared to leave for Wisconsin to join a friend and work construction. 

As migrants face uncertainty about who is allowed to stay and who isn't, the Biden administration is reshaping how it's using pandemic-related powers known as Title 42, named for a section of an obscure 1944 law that former President Donald Trump tapped to effectively end asylum while health officials sought to prevent the coronavirus from spreading.

The Department of Homeland Security on Tuesday confirmed it was taking steps to ease more than a year of asylum restrictions that have led border authorities to rapidly expel single adults and many migrant families with older children from the country. Unlike Trump, President Joe Biden has exempted unaccompanied children.

An attorney for the American Civil Liberties Union said Monday that the changes were a result of negotiations to settle a lawsuit that the organization filed in federal court in Washington, D.C. 

The Biden administration has agreed to eventually let about 250 people a day through southern border crossings to seek refuge in the United States. Homeland Security said it was "working to streamline a system for identifying and lawfully processing particularly vulnerable individuals who warrant exceptions for humanitarian reasons under the Title 42 order." They will be allowed to seek humanitarian protection through a consortium of nongovernmental organizations after being tested for COVID-19.

About 2,000 people have already been exempted from expulsion and allowed to enter the country to pursue asylum or other forms of protection in the United States, said ACLU attorney Lee Gelernt.

"While these concessions will hopefully save lives, they are not a substitute for eliminating Title 42 and restoring asylum processing fully," Gelernt said.

The government also has stopped flying migrant families from the Rio Grande Valley, the nation's busiest corridor for illegal crossings, to El Paso and San Diego to be expelled to Mexico. The U.S. can resume flights "if it deems the circumstances warrant," both sides said.

Homeland Security said in a statement that flights were initially halted based on "operational needs" and that negotiations resulted in "continued suspension."

Biden has faced criticism from progressives for keeping asylum off-limits to many and creating policies that encourage parents to send children across the border alone. Enforcement-minded critics say exempting unaccompanied children from expulsion led to record numbers crossing the U.S.-Mexico border and that further lifting restrictions will invite many more people to come.

Immigration advocates have ratcheted up pressure to end expulsions entirely, arguing that they cannot be defended solely on the grounds of protecting public health. Migrants are typically expelled  to Mexico within two hours of getting picked up by Border Patrol agents.

Administration officials have insisted that the pandemic powers are in place for public health reasons but have been vague on the "humane" asylum system that Biden promised during his campaign. Homeland Security Secretary Alejandro Mayorkas told lawmakers last week that improvements are needed.

"It has been a yearslong challenge preceding the Trump administration, preceding the Obama administration, that the time of adjudication of asylum claims is too long," Mayorkas said. "We need to shorten that, but not at the expense of permitting individuals to develop their legitimate claims through the recovery from the trauma that they might have suffered, and so many, in fact, have suffered."

Melissa Crow, an attorney for the Southern Poverty Law Center, said people on informal waiting lists to seek asylum at official border crossings with Mexico should be allowed to enter the United States. The Strauss Center at the University of Texas, Austin,  issued a report Tuesday that estimates nearly 19,000 migrants were on such waiting lists in eight Mexican border cities this month, a 15% increase from February.

"As asylum-seekers, these individuals are inherently vulnerable and should be covered by the consortium process," said Crow, who represents migrants on waiting lists in a federal lawsuit in San Diego. "But due to the lack of any concerted outreach to such individuals by either the government or the consortium organizations, most of them have no idea that the consortium process exists or that they might be eligible for it."

The Border Patrol's more than 173,000 encounters  with migrants on the Mexican border in April were the highest level since April 2000, though the numbers aren't directly comparable because more than six of 10 last month had been expelled. Being expelled carries no legal consequences, so many people try to cross multiple times.

Authorities encountered 17,171 children traveling alone in April, the highest number since an all-time high of 18,960 in March.

There were about 50,000 people encountered in families in April. About one of every three families was expelled to Mexico. The rest were allowed to remain in the United States to seek asylum. 


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