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July 2023, Volume 29, Number 3

DHS: May 11

Border. Title 42, which allowed the US to return 2.7 million migrants to Mexico without allowing them to apply for asylum beginning in March 2020, expired May 11, 2023. New rules allow the US to swiftly deport foreigners who enter the US illegally if they transited to the US via a country such as Mexico where they could have applied for asylum.

The number of migrant encounters fell from over 10,000 a day before May 11, 2023 to an average of 3,360 a day in the next two months as migrants realized they would be deported rather than released into the US. Many migrants seemed to believe DHS, which said: “Do not believe the lies of smugglers. The border is not open.”

Some 2.2 million unauthorized foreigners were encountered in FY22, and 1.3 million in the first eight months of FY23.

The US returned 11,000 migrants to 30 countries in the week after May 11, 2023, but released 21,000 migrants into the US to await court dates. Many cities far from the border are struggling to deal with the migrants released into the US. New York City, which guarantees shelter to all those seeking beds, is trying to house 40,000 migrants, many of whom were bussed from border cities.

Between January 2021 and May 2023, some 1.8 million migrants who entered the US illegally and applied for asylum were allowed to remain in the US. Over two million foreigners were returned to Mexico under Title 42 between spring 2020 and spring 2023.

Up to 1,450 migrants a day can make appointments to apply for asylum in the US using the app CBPOne, and over 30,000 did so in May-June 2023. Over 100,000 migrants are reportedly waiting for CBPOne appointments in northern Mexico.

Individuals who make appointments are allowed into the US and often given court dates that may be several years in the future. While waiting, asylum seekers can usually work and their children attend K-12 schools. Cubans, Haitians, Nicaraguans and Venezuelans who enter the US illegally and ask for asylum after May 11, 2023 are being returned to Mexico to apply for asylum via CBPOne or apply for asylum in Mexico.

Migrants under 18 are released into the US to apply for asylum, and more are arriving in the US. Over 400,000 people are expected to cross the roadless 70 mile Darien Gap in Panama en route to the US in 2023, including 20 percent or 80,000 children under 18. Over three-fourths of the unaccompanied children headed to the US are from Venezuela, Ecuador and Haiti.

Migrants who pass a credible fear test at the border, meaning they convince an asylum officer that they face a credible fear of persecution at home, are allowed into the US and given a year to apply for asylum, and can get a work permit 150 days after applying. Some 250,000 asylum applications were filed in FY22, bringing the total number of cases pending in immigration courts to 1.9 million, including 760,000 asylum cases. Some of the migrants who pass the credible fear test and enter the US fail to apply for asylum, especially if they are able to find a job without work authorization.

The US spends far more on immigration enforcement, some $25 billion in FY21, than on labor law enforcement, $2 billion. DOL’s WHD investigators visit 1,000 farms a year to check for violations of labor laws.

Future flows over the Mexico-US border are uncertain. Admissionists who want more migration often stress the push factors in countries of origin that expel migrants, while restrictionists emphasize US pull factors such as US jobs that attract migrants.

ICE. The USSC in an 8-1 decision in June 2023 allowed the president to establish priorities for enforcing immigration laws. President Biden in September 2021 instructed ICE agents to focus on foreigners who are threats to “national security, public safety and border security.” Several states sued, arguing that immigration law requires all unauthorized foreigners to be arrested, detained, and removed. The USSC decided that, since Congress did not appropriate sufficient funds to arrest all unauthorized foreigners, the president can set priorities for ICE.

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