Expiration Title 42 Pandemic emergency rules along the US-Mexico border on May 11 mean that all migrants and asylum seekers entering US soil must be processed under Section 8, a complex and decades-old set of immigration laws.

On paper, the handling of migrants arriving at US borders has returned to pre-pandemic protocols. But the current level of migration to the southern border is at a level historical highswhich makes the treatment of migrants anything but normal.

Now that Section 42 is no longer in effect, the US asylum law, which dates back to 1980, requires officials to at least give migrants who claim they are fleeing danger an initial interview. This does not mean that all migrants will be allowed to stay in the US

In fact, the Biden administration passed a rule that makes it harder for migrants to qualify for asylum in the first place and easier for the government to deport them. It combines this restriction and increased deportations with programs that allow migrants to enter the U.S. legally if they meet certain requirements.

Here’s how Section 8 migrants will be handled, at least for the foreseeable future.

What is Section 8 and how is it different from Section 42?

Title 8 and Title 42 refer to sections of the United States Code that categorize all permanent federal laws. Title 8 covers laws relating to “aliens and citizenship”, a Title 42 includes “public health and welfare” laws.

The Section 42 order, which has now expired, was based on a Public Health Act 1944 which gives the government the right to ban people or products from countries if there is a “serious danger” that they could spread a contagious disease. The Trump administration first issued an order at the start of the COVID-19 pandemic to quickly deport migrants without processing requirements under US immigration and asylum laws.

Migrants processed under Section 42 were not allowed to apply for asylum. They were quickly processed and deported from the US, usually going back to Mexico. In more limited cases, they were sent to their homeland.

Unlike formal deportations under Section 8, deportation under Section 42 does not impose immigration or criminal consequences on migrants, meaning that those deported to Mexico can repeatedly attempt to cross the border. Under Section 8, deported migrants are barred from entering the United States for at least five years. And if they re-enter the U.S. illegally, they could face charges and imprisonment.

A U.S. Border Patrol agent watches as immigrants enter a vehicle to be transported from a makeshift camp between the U.S. and Mexico on May 13, 2023 in San Diego, California.
A U.S. Border Patrol agent watches as immigrants enter a vehicle to be transported from a makeshift camp between the U.S. and Mexico on May 13, 2023 in San Diego, California.

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While those processed under Section 8 are usually deported back home, Mexico recently agreed to accept deportees from Cuba, Haiti, Nicaragua, and Venezuela at the request of the U.S., which cannot carry out large numbers of deportations to these migrants’ home countries because of for diplomatic and logistical reasons.

Who can seek asylum now?

The US Asylum Act gives migrants the legal right to seek asylum when they are physically on US soil, regardless of how they entered the country.

Under “expedited removal,” the fast-track deportation process the Biden administration is expanding after ending Section 42, migrants can be quickly deported without trial if they don’t seek asylum. If migrants processed under expedited removal claim asylum, they must pass an initial screening with an asylum officer to avoid deportation.

Generally, these initial checks, known as “credible fear” interviews, have high standards. But a recent asylum cap imposed by the Biden administration raised the bar for migrants who entered the country illegally after failing to claim asylum in a third country en route to the US. The new rules are designed to ensure that most non-Mexican asylum seekers are rejected, deported and removed from the US for five years.

Not all migrants will be processed for expedited removal, as the government does not have enough staff on asylum, detention facilities and deportation flights to enforce the policy for anyone crossing the southern border illegally.

Some of the migrants will be held in long-term detention centers until their cases are reviewed. The rest will be released with a warning to appear in court. Another policy, under which migrants are released with instructions to register with immigration officials to receive a court date at their final destination, has been blocked in federal court.

While litigious migrants can be deported if they don’t meet asylum requirements or fail to appear at hearings, they often wait years for a decision because the massive backlog of the immigration court system processes more than 2 millions of unsolved cases.

Are adults treated differently than families and children?

yes. Adult migrants traveling without children are expected to be disproportionately affected by the tougher measures announced by the Biden administration, as the US could detain more unaccompanied adults while officials decide whether to deport them.

Unaccompanied adults in expedited processing will be deported if they do not apply for asylum, and placed in federal custody if they do, pending a phone screening by asylum officers. Immigration and Customs Enforcement recently expanded its detention facilities to be able to hold several thousand additional adults.

While the new asylum restriction applies to both adults and families, most parents and children traveling together are likely to be released with court notices or a scheduled interview with an asylum officer, as the Biden administration ended family immigration detention. However, some parents will need to undergo GPS tracking and a curfew at home.

Migrant adults and families who have passed an initial screening by asylum officers will be allowed a day in court. Like those exempt from judicial notice, they will need to prove that they are fleeing persecution because of their race, nationality, religion, politics, or social group in order to receive asylum that will allow them to stay in the U.S. permanently.

Unaccompanied migrant children are categorically exempt from expedited removal and asylum restrictions. A 2008 law requires US border guards to turn over all unaccompanied migrant children who are not from Mexico to the Department of Health and Human Services (HHS) within 72 hours.

HHS places these children in shelters, foster care, and other living arrangements until they turn 18 or are claimed by a U.S. sponsor, usually a family member such as a parent or grandparent. While in the US, they can apply for asylum or an abused or abandoned child visa.

How can migrants enter the US legally?

The Biden administration has also expanded opportunities for migrants to come to the US with government permission, betting that it will discourage illegal border entry.

Migrants in northern and central Mexico can use a government phone app known as CBP One to try to make an appointment to enter the U.S. at a port of entry along the southern border. The US distributes about 1,000 appointments per day. Those who have an appointment are usually allowed to enter the US after some vetting, released and given a court notice.

A migrant displays the CBP One App used to make an appointment for asylum in Ciudad Juarez, Mexico, on May 10, 2023.
A migrant displays the CBP One App used to make an appointment for asylum in Ciudad Juarez, Mexico, on May 10, 2023.


Cuban, Haitian, Nicaraguan and Venezuelan migrants are also able to fly to the US if US residents agree to support them financially. The Biden administration’s program allows up to 30,000 such arrivals per month.

Migrants who use the CBP One program or the sponsored program are exempt from the asylum restriction and may apply for work authorization and asylum.

The Biden administration recently announced a program to allow up to 100,000 Central Americans and Colombians to fly to the U.S. if they approve visa applications submitted by their U.S. citizens or resident relatives. He also said he would set up dozens of processing centers in Latin America to verify migrants’ eligibility for resettlement in the United States, Canada, Spain or host countries.


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