DHS: After Title 42 Expires, We Will Process Migrants Using ‘Title 8 Authorities, Which Provide for Meaningful Consequences’

(CNSNews.com) – When Title 42 expires on Dec. 21, DHS will process migrants encountered at the border “without proper travel documents using its longstanding Title 8 authorities, which provide for meaningful consequences, including barring individuals who are removed from re-entry for five years,” DHS Secretary Alejandro Mayorkas announced this week. 

“These consequences include placing individuals in expedited removal, which allows DHS to quickly repatriate individuals who do not have a legal basis to stay in the United States,” Mayorkas said in a statement.

He said that whether Title 42 is in place or not, “those unable to establish a legal basis to remain in the United States will be removed.”

DHS outlined six key pillars that will be used to guide their work after Title 42 is lifted, according to an update posted on its website.

  • Pillar 1: Surging resources, including personnel, transportation, medical support, and facilities to support border operations.
  • Pillar 2: Increasing CBP processing efficiency and moving with deliberate speed to mitigate potential overcrowding at Border Patrol stations and alleviate the burden on the surrounding border communities.
  • Pillar 3: Administering consequences for unlawful entry, including removal, detention, and prosecution.
  • Pillar 4: Bolstering the capacity of NGOs to receive noncitizens after they have been processed by CBP and are awaiting the results of their immigration removal proceedings. And, we are ensuring appropriate coordination with and support for state, local, and community leaders to help mitigate increased impacts to their communities.
  • Pillar 5: Targeting and disrupting the transnational criminal organizations (TCOs) and smugglers who take advantage of and profit from vulnerable migrants, and who seek to traffic drugs into our country.
  • Pillar 6: Collaborating with international and federal partners to deter irregular migration south of our border to ensure that we are sharing responsibility throughout the Western Hemisphere.

Under Pillar 3, DHS said that it will impose consequences “by optimizing and speeding processing of those subject to Expedited Removal (which allows for the quick removal of those who do not claim fear or otherwise are thought to be eligible for protection), detaining single adults when appropriate, and referring for prosecution those whose conduct warrants it.”


We also are increasingly leveraging our Alternatives to Detention (ATD) program and the Asylum Processing Rule for those individuals provisionally released from DHS custody pending their immigration proceedings. The ATD program allows us to track and improve the ability of noncitizens to check in regularly with ICE; results so far show that over 99 percent appear for their scheduled immigration court hearings as required. DHS and the Department of Justice began implementing a new rule on asylum processing in May that aims to more efficiently adjudicate claims; in early yet promising results since then, the median time from filing to completion is 45 days compared to several years. 

For noncitizens seeking to evade apprehension, repeat offenders, and those engaging in smuggling efforts, we are increasing referrals for prosecutions. In FY 2023 to date, there has been a 237 percent increase in prosecutions as compared to the same period in FY 2022. This will continue to be an important lever as we ramp up prosecution for repeat offenders.

Finally, the pairing of expanded legal pathways and clear consequences for those who do not avail themselves of those pathways, as demonstrated by the effectiveness of the new Venezuela parole process announced in October, provides an important model that we intend to build on.

Furthermore, DHS said that in light of the limitations in the current system, it is mindful of the “following challenges and potential developments at high levels of encounters.”

• Throughout 2022, CBP, ICE, NGOs, and other critical partners have been managing levels well beyond the capacity for which their infrastructure was designed and resourced, meaning additional increases will create further pressure and potential overcrowding in specific locations along the border. 

• With NGOs strained, there is a potential for a higher number of single adults and families to be provisionally released from DHS custody into communities without NGO or other sponsor support, pending the outcome of their immigration court proceedings. These noncitizens will have been fully screened and vetted against law enforcement and national security databases. The federal government has few tools or authorities to support the related impacts of these provisional releases on local communities; ESFP is primary among them and limited in terms of available funding. 

• Communication and coordination across state, local, and community leaders requires good faith engagement of all parties, to help ensure we can effectively manage these developments together. We are actively engaged in this communication and coordination with all our partners and call upon others to do the same. 

• Depending on levels, land POEs could experience processing delays and disruptions at specific points in time.


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