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What is Title 8, the law now governing immigration?

Title 42 is still technically in place but won't be used to enforce immigration law. Instead, the U.S. is following its pre-pandemic laws.
What is Title 8, the law now governing immigration?
Posted at 7:50 AM, May 12, 2023

Now that Title 42 is no longer being enforced at the U.S. border, the nation’s immigration law reverts back to Title 8. 

With Title 42 no longer being used to turn away migrants entering the U.S., officials expect a massive increase in people attempting to seek asylum. Since March 2020, the U.S. has made it difficult for many looking to seek asylum in the U.S. under Title 42.

Here is a look at the difference between Title 8 and Title 42.

What is behind the names Title 8 and Title 42

There are two sets of laws that regulate life in the country: The Constitution and the U.S. Code. The Constitution supersedes the U.S. Code. If a statute in the U.S. Code is in contradiction with the Constitution, courts may find the law to be unconstitutional. 

The U.S. Code is made up of 53 titles (there is a Title 54, but Title 53 is being reserved for small businesses). These codes make up the laws that aren’t in the Constitution. Within these titles are parts and chapters. 

SEE MORE: Mayorkas warns migrants: 'The border is not open' after Title 42 ends

Technically, Title 42 isn’t disappearing

Title 42 is actually not an immigration title. Instead, it is a title dictating U.S. law on “The Public Health and Welfare.” 

The change in immigration posture at the border on Thursday coincided with the U.S. ending its COVID-19 emergency that had been in place since March 2020. Within Title 42 was a part that dictated quarantines and inspections. Drilling down deeper, there is a law within Title 42 that gives the Surgeon General the ability to suspend imports and inspections to prevent the spread of diseases. 

“Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose,” the law reads. 

That law still exists, but the Surgeon General has essentially determined that there is no longer a “serious danger” of introducing a communicable disease into the U.S. 

SEE MORE: House Republicans want border wall construction, asylum restrictions

What's in Title 8

Title 8 is what governs things like immigration, border security, civil rights, alien ownership of land, and so on. Bills that Congress may pass involving these subjects could be placed somewhere within Title 8. 

U.S. Code 1158 within Title 8 might be of particular interest when looking at current U.S. immigration law. This is the section of the law that determines how migrants can obtain asylum in the U.S. 

The law broadly states that a person in the U.S., no matter how they entered, can make an asylum claim. The migrant has up to a year to make the asylum request. 

Asylum gives people who fear for their lives an opportunity to live in the U.S. Many lawmakers have criticized this law because, without Title 42, the U.S. generally doesn’t have the legal means to remove asylum seekers without due process.

One exception to this spelled out in the law would be if the U.S. had a “safe third-country agreement” with Mexico. If the two nations agreed, the U.S. could turn back migrants into Mexico even if they had a fear of persecution in their home country. 

Although the U.S. does not have an agreement with Mexico, the U.S. has established a safe third-country agreement with Canada, largely meaning that if any asylum seekers were to enter from the Canadian side of the border, they would likely be turned away. 

What are the odds of getting asylum?

For many of the asylum seekers entering from Central America, they face challenging odds. 

According to government data for Oct. 1, 2022, through Jan. 16, 2023, the government denied twice as many applications as it accepted for migrants from countries like Guatemala, El Salvador, and Honduras. 

But many applications remain in the “other” category, meaning they have yet to be adjudicated or the applications have been withdrawn. 

The process can take many months as claims have to be adjudicated, even if that person is unlikely to be given asylum. 

What can the Biden administration do?

Because laws are passed by Congress, the Biden administration cannot change laws on its own. However, the Biden administration has issued several orders that immigration activists claim go beyond the administration's scope of executive power. 

The Biden administration implemented a phone application that gives migrants the opportunity to schedule a time to come to the border to seek asylum. The order largely prohibits those who enter Mexico from another country from coming to the U.S. to seek asylum without using the app. 

Activists have said potential asylum seekers have had difficulty securing scarce appointments. 

The administration is facing lawsuits over the policy. 

“People fleeing persecution have a legal right to seek asylum, no matter how they reach the border,” said Melissa Crow, director of litigation at the Center for Gender & Refugee Studies. “Our asylum system was designed to protect people fleeing imminent threats to their lives who do not have the luxury of waiting for an elusive appointment or for an application to be adjudicated in a country where they are in danger. The Biden administration has had over two years to set up a fair and humane asylum process post-Title 42.”

SEE MORE: New York suburb fights NYC on busing migrants

What can Congress do?

Congress could enact laws that change how migrants can seek asylum, but that would require some consensus on just how welcoming the U.S. should be for migrants. For instance, Republicans in the House passed a bill on Thursday that would prohibit migrants from applying for asylum if they don't cross the border at a legal port of entry. The bill would also prohibit migrants from countries other than Mexico who enter from Mexico from seeking asylum in the U.S. without trying in Mexico first. 

But both Democrats and Republicans acknowledge the bill won't go anywhere in the Senate.

A change in the nation’s asylum law could be at odds with the U.N.'s 1951 Refugee Convention’s 1967 Protocol. Although the U.S. did not sign onto the original treaty in 1951, it did sign onto the provisions of the 1967 Protocol, which applies asylum laws universally and protects people fleeing conflict and persecution globally. 

Although the U.S. signed onto the 1967 Protocol, U.S. law supersedes international law. 

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