Immigration Attorney: Legal issues will remain after Title 42 expires

US officials have announced plans to reinforce Title 8 law following the expiration of Title 42, which has previously been open to interpretation. Homeland Security Secretary, Alejandro Mayorkas, revealed on Friday that the new immigration regulations would be released prior to the expiration date, stating that Title 8 will be implemented once again.

Mayorkas explained that, “In a post Title 42 environment, we will use our expeditious removal authorities under Title 8 of the United States Code. This allows us to move people around very quickly.” Benjamine “Carry” Huffman, the acting deputy commissioner for US Customs and Border Protection, has supported the plan and echoed Mayorkas’ message, stating that they will rely on the decades-old Title 8 process which has been implemented many times in the past to protect the US border.

However, immigration lawyer Gerardo Menchaca has suggested that this law is very outdated, explaining that it has not been followed to the letter for some time. He explained that “The president can order the Department of Homeland Security to change its understanding of how the law is interpreted and enforced even if the law doesn’t change.”

Menchaca has pointed out that previous administrations have used executive orders to change immigration rules. Furthermore, he suggests that it is difficult to determine how the new regulations will work until the fine print has been scrutinized and analyzed. Menchaca explained that the latest interpretation of Title 8 may even result in stricter policies in some areas, noting that “President Biden is stepping up enforcement and basically creating a system that’s kind of like Title 42. He’s raising the bar on what it takes to qualify for asylum… making it harder for people to qualify.”

In addition, Biden hopes to establish centers in various parts of Latin America, in which individuals from other countries can apply for asylum, which could considerably reduce the number of immigrants at the US border. While it is unknown whether the President has the authority to make such a move, Menchaca suggests that he could do this under Title 8, or create executive orders to sit atop Title 8.

The review process for the new regulations could take several months, as outlined by CBS News reports, which suggest that certain migrants may not be eligible for asylum if they do not apply for it in the first country they reach crossing borders, other than the USA, emphasizing that an illegal entry into the US could also result in a ban of five years or more, before applying for asylum.

Menchaca has suggested that the new regulations could be met with resistance from lawyers who may contest the new rules, claiming that, “Usually immigration lawyers get together and say ‘You know that doesn’t sound right.’ We come up with arguments to challenge the rules and let a federal judge decide. That’s how it’s played out over the past 10 years.”

Menchaca explained that a significant review of the Title 8 laws is expected to be made, indicating that the current version of the law has not been technically updated since the 1980s. Many administrations have attempted to pass immigration reform projects since that time, however, none have been successful.

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