Border Processing Post-Title 42

Last Updated May 10, 2023

Title 42, the Public Health Service Act section that has allowed the government to halt entry of people into the U.S. at the Southern border since March 2020 due to COVID, is expected to be lifted on May 11, 2023 as the public health designation is slated to end. The proposed asylum processing rule, Circumvention of Lawful Pathways, commonly referred to as the Asylum Transit Ban 2.0, has been finalized and will take effect on May 11, 2023.

As of April 10, 2023, the Prompt Asylum Claim Review (PACR) program has been expanded. PACR places credible fear interviews (CFIs) on a fast track when individuals are detained in CBP custody.  Further expansion of PACR is expected to begin May 11, 2023. Interviews of individuals in CBP custody are expected to be held by phone within hours of apprehension and leave asylum applicants with little to no access to counsel.  Also, Mexico has announced that it will begin to accept Title 8 removals.  

Circumvention of Lawful Pathways, aka Asylum Transit Ban 2.0:

Under this new rule, individuals from countries other than Mexico arriving at the southern and coastal borders between May 11, 2023 and May 11, 2025 will be barred from seeking asylum unless they applied for asylum and were denied in a third country on their way to the United States. 

There is a rebuttable presumption that these individuals are ineligible to apply for asylum unless they demonstrate that they or a family member:

1. Faced an acute medical emergency at the time of the unauthorized entry;
2. Faced an extreme and imminent threat to their life or safety (i.e., rape, kidnapping, torture or murder) at the time of the unauthorized entry; or
3. Was/were a victim of a severe form of trafficking as defined in 8 CFR § 214.11 at the time of the unauthorized entry.

Exceptions: 

1. The individual presented at a Port of Entry (POE) after making an appointment through the CBP One app (see below);
2. The individual waited at a POE to seek asylum and established that they could not access the app due to a “language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle”; or
3. The individual is an unaccompanied minor.

CBP One App Users: Asylum seekers who use the pre-scheduled system though the CBP One app will not encounter a transit bar and are expected to be paroled into the U.S. and served an NTA. No credible fear interview or ICE detention is expected for these users.

CPB App changes: These changes apply to appointments that are assigned May 24, 2023 and onward. Major changes include increasing functionality issues and moving away from the first-come, first-serve system. Instead, the 1000 spots/day will be filled by random selection of individuals who request an appointment in that 24-hour period.  

Walk-ups: Walk-ups, or people not using the app and seeking asylum without prior appointments, will have to wait for processing and can face being turned back.  The government says it will not “meter.”