By Lara Kajs
Thinking Out Loud
As U.S. border policy shifts following the end of Title 42, this piece examines the legal, humanitarian, and operational implications of the Biden administration’s new approach. It explores the tension between enforcement and protection, the challenges facing asylum seekers, and whether current policies align with international law and human rights obligations.
After three years of rights violations, the emergency health authority known as Title 42 has officially ended. In its place, a new border initiative—complete with complications and criticisms—has begun. The challenge for the Biden administration is to manage the crisis at the southern U.S. border in a humane manner while adhering to international human rights law.
Seeking Asylum is a Basic Human Right
People have the right to be safe in their own country. When that is not possible, they have the right to seek safety—and asylum—elsewhere. Since its enactment in March 2020, Title 42 has been used 2.8 million times to deny asylum access at the U.S.-Mexico border. While some viewed the policy as a way to prevent irregular migration, it also violated international law by blocking access to asylum altogether.
Seeking asylum became a protected right under international law following the atrocities of World War II. The United States codified key provisions of the Geneva Convention through the Refugee Act of 1980. Simply put, seeking asylum is protected by law—it cannot be arbitrarily denied.
Seeking asylum became a protected right under international law following the atrocities of World War II.”
A Return to Title 8
The end of Title 42 marks a return to Title 8, the prior framework for border management. For tens of thousands of migrants waiting in Mexico—often in overcrowded shelters or on the streets, vulnerable to exploitation and violence—this shift may offer a pathway forward. For others, it may result in removal and a ban on reentry for at least five years.
Under Title 8, individuals seeking asylum cannot be turned away without screening. Those who demonstrate a “credible fear” of persecution may remain in the U.S. while their cases proceed through immigration court. Those who do not meet that threshold face deportation.
CBP One and Barriers to Access
The Biden administration has introduced new asylum rules and legal pathways intended to reduce irregular crossings. Central to this effort is the CBP One Mobile Application, which requires migrants to apply for asylum appointments online. Central to this effort is the CBP One mobile application, which requires migrants to apply for asylum appointments online.
From its launch, the app raised serious concerns. Limited access to smartphones and reliable internet, language barriers, and the difficulty of securing appointments have all restricted access. There are also reports of individuals being turned away at the border for failing to apply through the app first—even when presenting themselves lawfully. These are not individuals attempting to evade the system; they are attempting to use it.
A major point of contention is the requirement that migrants seek protection in another country en route to the United States. Failure to do so may disqualify them from asylum. This requirement conflicts with core principles of international refugee law.
Admission Caps and Conditional Pathways
The U.S. has piloted aspects of this initiative through programs like “Uniting for Ukraine,” which admitted approximately 300,000 Ukrainian refugees. Similar pathways have been extended to migrants from Venezuela, Haiti, Nicaragua, and Cuba, allowing up to 30,000 individuals per month—provided they apply online, secure a financial sponsor, and arrive by air.
Additional provisions allow up to 100,000 individuals from Guatemala, El Salvador, and Honduras to enter under similar conditions. Those who do not meet the criteria face deportation.
A key component of the policy is Mexico’s agreement to accept up to 30,000 migrants per month who attempt irregular crossings. In return, the U.S. provides financial assistance, personnel support, and public information campaigns to counter smuggling networks.
FERM and Alternatives to Detention
Family Expedited Removal Management (FERM) introduces monitoring measures for families awaiting immigration proceedings. The program includes GPS ankle monitors for heads of household and enforced curfews. Officials aim to determine within 30 days whether families may remain in the U.S. or face removal.
FERM is positioned as an alternative to family detention—a practice widely criticized and largely abandoned. The intent is clear: avoid a return to policies that resulted in the detention of children.
Implications and the Path Forward
A more coordinated response between governments, communities, and humanitarian organizations is essential. Border reception centers staffed with asylum officers, medical professionals, trauma specialists, and child welfare experts would provide a more humane and effective approach. These centers should offer food, water, shelter, and logistical support for onward travel and family reunification.
Any decision to return individuals to Mexico or their country of origin must include a thorough assessment of risk and uphold the principle of non-refoulement—the prohibition against returning individuals to situations where their lives or safety are at risk.
Expanding safe and legal pathways is a step forward. However, policies that restrict access to asylum remain deeply concerning. Border management must align with international law and prioritize protection.
The argument that the United States is “full” is not only inaccurate—it ignores global realities. Poland, a country far smaller than the U.S., took in approximately one million people within weeks of the war in Ukraine. The United States has the capacity to do more.
One Final Thought
Displacement cannot be solved by any single country, agency, or organization. Meaningful progress will require sustained global cooperation to address both the causes of displacement and the realities of migration.
Published 12 June 2023
Photo Credit: New Mexico Border by rmcspadden@biologicaldiversity.org is licensed under CC By -NC 2.0
About Thinking Out Loud
Thinking Out Loud is a commentary series by Lara Kajs examining international law, humanitarian crises, and the prevention of mass atrocities. Drawing on field experience in conflict and displacement settings, the column explores the legal and policy challenges that shape contemporary conflicts
About the Author
Lara Kajs is the founder and executive director of The Genocide Report, a Washington, DC-based educational nonprofit focused on atrocity prevention and international law. She is the author of several field-based books on conflict, displacement, humanitarian crises, and international humanitarian law, drawing on extensive research and field experience in Yemen, Syria, and Afghanistan. Her writing and public speaking focus on atrocity crimes, forced displacement, the protection of civilians, and the legal frameworks governing armed conflict.