EL PASO, Texas (KFOX14) — Title 8 allows U.S. Border Patrol to process and remove migrants who do not have a legal basis to remain in the United States and cannot be expelled under Title 42.
"Under Title 8 authorities, any noncitizens who cross the border illegally between the ports of entry and are determined not to have a legal basis to remain will be processed for removal," according to Claudio Herrera-Baeza, a spokesperson for El Paso Sector Border Patrol.
KFOX14 spoke with an immigration defense attorney, Alexis Lucero, to get a breakdown of the Title 8 policy.
Lucero said Title 8 allows for the expedited removal of individuals who are ineligible for asylum due to criminal backgrounds or who are not able to prove their legal basis to enter to stay on U.S. soil.
“Before the pandemic, title eight was the main resource for immigration authorities to either decide to detain somebody at the border, release them with some type of permit to seek asylum or another basis for humanitarian reasons," Lucero said.
Whereas, Title 42 "excluded everyone" from entering the country due to the public health concern of the COVID-19 pandemic.
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The process for immigration court hearings have changed since President Biden's term began in 2020, according to Lucero.
“What we used to see a few years ago, when a person entered with a claim for fear is that that person would enter. And then because of the backlog, they may not see a judge for maybe about two to three years," Lucero said.
Instead of waiting years, Lucero said the individual could receive approval of asylum and seek residency in the country cased on their claim under Title 8.
“Now, for the most recent arrivals, those people are the ones that have court under a much more fast track which was an attempt by the administration to really get those people and their claims processed by immigration authorities relatively quickly," Lucero said.
Data complied by Syracuse University showed the backlog in immigration court cases surpassed 2 million at the end of November and wait times for asylum seekers for the hearing on their claims is an average of 4.3 years.
According to Lucero, many asylum seekers with clean records benefited from the backlog as their case was put on a fast track for the courts decision or their case was suspended because they were not a priority for removal.
“Yes, some people that were able to benefit from a program that was recently invalidated by the courts, is the program for DHS in prosecutorial discretion," Lucero said. "If a person didn't have, for example, a criminal background or prior deportations, then those people were kind of put to the side temporarily. And instead, immigration faced or at least focused a lot of their resources on people that did actually pose a threat."
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