DHS prepares for return to processing noncitizens under Title 8, despite public health order hangups

Currently, immigration to the United States is still bound by the requirements of the Title 42 public health order enacted in March 2020, but while the legality of this remains bound up in court, the Department of Homeland Security (DHS) stated this week that it is preparing for a return to Title 8 immigration authorities.

Title 42 allowed U.S. officials to quickly deport those who crossed the border illegally for COVID-19 prevention, bypassing many of the usual processes. By contrast, Title 8 is the longstanding policy at the department, but one which DHS seeks to enhance going forward through a mix of new border enforcement measures, limitations on irregular migration and new processes for those claiming refugee status, and more.

“We can provide humanitarian relief consistent with our values, cut out vicious smuggling organizations, and enforce our laws,” DHS Secretary Alejandro Mayorkas said. “Individuals without a legal basis to remain in the United States will be subject to prompt expulsion or removal. Individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers only to arrive at our southern border and face the legal consequences of unlawful entry.”

As part of this, new parole processes are being deployed for Cubans, Haitians, and Nicaraguans to provide lawful paths into the country, complete with authorization to work and added consequences for those that seek to enter illegally. That process will be continued for Venezuelan immigrants as well. Further, in a move affecting all, DHS plans to increase and expand the use of expedited removal under Title 8 authorities for those the Title 42 public health order could not allow to be processed, and personnel and resources will be surged to meet the demand.

At the same time, the Customers and Border Protection One App will offer a means for noncitizens to schedule appointments at ports of entry. While this will initially be used for those pursuing exceptions to the Title 42 order, if that order is ultimately removed, the agency will use this system to enhance processing at ports of entry. DHS, together with the Department of Justice (DOJ), also intends to release a proposed rule to incentivize new and existing processes for immigration and slap new conditions on asylum eligibility for those who fail to meet those processes.