Immigration Attorney: Legal issues will remain after Title 42 expires

US officials have said the US will reenforce the Title 8 law after Title 42 expires, but Title 8 has been open to interpretation.

SAN ANTONIO — Homeland Security Secretary Alejandro Mayorkas said on Friday that the new immigration rules would be released before Title 42 expires and said Title 8 would be enforced again.

“In a post Title 42 environment, we will use our expeditious removal authorities under Title 8 of the United States Code,” Mayorkas said. “This allows us to move people around very quickly.”

Benjamine “Carry” Huffman, the acting deputy commissioner for US Customs and Border Protection, echoed that message.

“We will rely on our decades-old Title 8 process that we have used time and time again in the past to enforce the law and protect the border,” Huffman said.

Title 8 is a long, heavily amended and at the same time very dated US code, which has not been followed up on for some time by the letter, at least according to immigration lawyer Gerardo Menchaca.

“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 said. “It happens all the time.”

Menchaca also said that previous US presidents have used executive orders to change immigration rules. Put it all together and Menchaca said it’s nearly impossible to know how the new rules will work until they’ve studied and discussed the black-on-white text. Menchaca said the latest interpretation of Title 8 might actually be tougher on immigration in some respects.

“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,” Menchaca said.

At the same time, Menchaca said that Biden wants to set up centers in various parts of Latin America where people can apply for asylum. This could streamline the process by also reducing the amount of immigrants at the border, though it’s unclear where the president has the authority to do so.

“He could do it under Title 8, or he could just create executive orders to sit atop Title 8,” Menchaca said.

Whatever new rules come after Title 42, Menchaca told KENS 5 that he and other lawyers will likely take several months to study exactly what new rules will apply.

Based on CBS News reports, new regulations could disqualify migrants from asylum if they don’t apply for it in another country they travel to to reach the United States. Illegal entry into the United States could also result in a ban of five years, or more, before the individual could make a legitimate claim for asylum.

Menchaca said it’s also possible some lawyers are contesting the new rules.

“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 said.

The review of the new rules can also take several months in some cases. Menchaca told KENS 5 that the current version of Title 8 hasn’t technically been updated since around 1980 and an overhaul is expected. He said multiple administrations have tried to pass immigration reform projects since then, but none have been successful.

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