As Title 42 ends in US, asylum seekers wait for relief on border

Tijuana, Baja California, Mexico – “No, today there is no difference,” Jerson said as he peered through the openings of the Mexican border wall on Friday morning.

It had been the same for days: hundreds of people from Haiti, Colombia, Brazil, Turkey and Afghanistan, among others, are stranded between two high walls that cut across the country.

On the other side of a wall is Tijuana, Mexico. And on the other side is the San Ysidro district, part of the American city of San Diego.

On May 9, Jerson, a 36-year-old from Colombia, and his 16-year-old son Bryan climbed over the Mexican side and landed on a narrow ribbon of American soil. Since then they have slept on the floor under thin tarpaulins for three cold nights. And now they wait, hoping the US Border Patrol will process their asylum applications.

That’s the dilemma facing many asylum seekers on the U.S. southern border now that the controversial Title 42 migrant deportation policy has ended — and uncertainty has taken its place.

Cracks in the wall have given rise to a small but vibrant economy: migrants and asylum seekers shove money to one side, and food deliverers respond with portions of chicken and coffee.

Jerson, speaking in Spanish and withholding his last name for security reasons, explained that he had been given water but no food by the US Border Patrol that morning. As he spoke, a Border Police vehicle slowly rolled by and observed the scene.

But Jerson felt he couldn’t leave the narrow alley between the two walls. At home in Colombia, he said he was threatened by gangs. After taking four different flights to arrive in Tijuana, he grew frustrated with the CBP One app, a U.S. Customs and Border Protection mobile platform created for asylum seekers to schedule immigration appointments.

“Wrong, wrong, wrong,” Jerson recalled reading on the app. “It didn’t accept my passport photo.”

So he and his son wait, trapped between the two walls, hoping for a chance to rejoin their family in New York, where Bryan’s mother and two older brothers live. But that requires navigating a new system of border policies, one that hasn’t even been in effect for 24 hours.

Carrot-and-stick approach

Title 42, invoked in 2020 under then-President Donald Trump, allowed the US to deport asylum seekers without processing their applications, on public health grounds.

But when the US ended its emergency declaration for the COVID-19 pandemic on Thursday, Title 42 ended with that.

At midnight US Eastern time (04:00 GMT), when the policy expired, the US implemented a carrot-and-stick approach on the southern border with Mexico. It opened new legal avenues for migration, but also implemented policies whereby irregular border crossings could lead to a five-year ban on returns and possible criminal prosecution.

It also announced new immigration processing centers in Colombia and Guatemala to screen people far from the US border for asylum and immigration eligibility.

In addition, the new rules restrict asylum applications from individuals traveling to the US through other countries. Similar to Trump’s “safe third country” rule, the policy requires asylum seekers to apply for refugee status and be rejected in those other countries before being eligible to apply in the US.

On Thursday, before the rule went into effect, the American Civil Liberties Union filed a lawsuit in a California federal court to block the rule, alleging incumbent President Joe Biden’s administration had “doubled down” on Trump’s “cruel” asylum restrictions .

The United Nations High Commissioner for Refugees had previously urged Biden to reconsider his regulations, as key elements of the rule are incompatible with international refugee law.

“The Refugee Convention recognizes that refugees may be forced to enter a country of asylum by irregular means,” the agency said. It added that the regulation will lead to cases where people are forced to return to dangerous situations – a practice prohibited under international law.

‘It will be a deportation mill’

In Tijuana, people seeking asylum have difficulty accessing legal avenues, explained Erika Pinheiro, executive director of Al Otro Lado, an organization that provides legal and humanitarian assistance to refugees in Tijuana and the US.

Many asylum seekers felt frustrated because they couldn’t get an appointment through the CBP One app. Al Otro Lado has told migrants and asylum seekers there would be “at least some chance” for people to present themselves at US ports of entry. However, US Customs and Border Patrol will focus most of their resources on people with CBP One appointments.

Those passing through a port of entry are given a “credible fear” interview within 72 hours of their detention — to assess claims of violence and persecution, Pinheiro explained.

If an asylum seeker cannot prove he has a legal basis for refugee status in the US, Pinheiro continued, he will be subject to expedited removal procedures. She feared that asylum seekers will have limited access to legal advice during this process.

“It becomes a deportation mill because I don’t see how individuals can meaningfully participate in the legal process while remaining in those circumstances, especially if they are expected to do so within 72 hours of crossing the border,” she said.

“Even if you have better access to American soil, it doesn’t mean you will have access to protection,” Pinheiro said of the post-Title 42 system.

‘De facto detention center’

Pedro Rios and volunteers from the American Friends Service Committee lined the San Ysidro side of the border on Wednesday, handing out bottled water and food to people through the wall.

“Border patrols will provide them with water and two granola bars three times a day, one in the morning and one in the evening,” he said. “And that’s all they get.”

He said the land between the walls “has become a de facto detention center”.

When migrants are held in detention, Customs and Border Protection has standards known as “Transport, Escort, Detention and Search” (TEDS) that govern how Border Patrol agents should treat people in short-term custody. They must provide meals and conduct welfare checks.

However, a 2022 US Government Accountability Office report found that there is no oversight mechanism to ensure that the agency follows these standards.

After frequent visits to the wall in recent weeks, Rios believes CBP is not up to standard. The standards say they have to deal with people quickly, but he spoke to a group of people from India who said they waited up to five days between two walls to be processed.

Several young women from Brazil told Al Jazeera that they had been waiting between the walls for four or five days.

Although he was sore and tired after sleeping on the floor, Jerson, the father from Colombia, remained patient. Like many asylum seekers at the border, he was confident that the system could still work to their advantage.

But the lines are long. And the barriers to entry are high. And for Jerson and his son, that means the future is up in the air.