By Julia Ainsley—
NBC News
An order issued by a federal judge in Washington DC offers migrant families a way to apply for asylum despite the fact that Title 42 is still active, which allows federal authorities to expressly expel those who cross the border, hiding behind the risk that involves the coronavirus pandemic.
The order restores the right of migrant families to cite fear of persecution and torture as justification for seeking asylum in the United States, and comes into force after a federal judge in Louisiana prevented the government led by Joe Biden last Friday. eliminate Title 42 this Monday as intended.
The court order has been collected in a directive to the Office of Customs and Border Protection (CBP, in English) and the Immigration and Customs Enforcement Service (ICE) and took effect at midnight on Monday, according to documents obtained by NBC News .
It establishes that if CBP agents (on whom the Border Patrol depends) observe that at least one of the family members shows a verbal or non-verbal "expression of fear" of being deported, they must be released in the US with summoned to court or sent to an asylum officer to determine whether they are likely to be persecuted or tortured in the country to which they would be deported.
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A Cuban migrant and her daughter wait to be processed by the Border Patrol in Yuma, Arizona, on February 6, 2022. Elliot Spagat / AP
A Department of Homeland Security official who spoke on condition of anonymity told NBC News that while there is still some confusion among border agents and officials about the conflicting orders from the two judges, this new guidance is "the first nail in the hole." Title 42's coffin."
The number of families expelled under Title 42 had already decreased, often because of Mexico's refusal to take them into its already overcrowded shelters.
Of the more than 54,000 migrants who crossed the border as a family in April, only about 7,000 were removed under Title 42. Families made up 23% of the migrants intercepted at the border with Mexico last month.
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Title 42 was due to expire on Monday, but the order of Judge Robert Summerhays, of the Western District of Louisiana, prevented the Centers for Disease Control and Prevention (CDC) from ending the measure, launched by former President Donald Trump in March 2020, when the pandemic began, and which has made it possible to deny asylum to more than two million migrants.
In a message to migrants who are considering crossing the border, the secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, said however in a video posted on the social network Twitter on Tuesday that "restrictions in the border have not changed.
Single adults and families will continue to be removed under Title 42.”
In practice, however, many migrant families who would previously have been denied entry will have a chance to get in, said Lee Gelernt, an attorney with the American Civil Liberties Union (ACLU).
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It is unclear whether asylum officials will allow migrant families to apply, Gelernt said, however.
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A spokesman for the Department of Homeland Security also said that families who are not eligible to apply for asylum and who are not removed under Title 42 will be put into expedited removal proceedings.