Ukrainians can be asked for asylum despite restrictions on other migrants at the US border


U.S. authorities along the Mexican border have been directed to consider exempting Ukrainians from a pandemic-related restriction so they can enter the country to seek asylum, according to a Department of Homeland Security (DHS) memo obtained by CBS News .

Speaking to reporters Thursday, DHS Secretary Alejandro Mayorkas said the guidelines are intended to remind Customs and Border Protection (CBP) officials that their power to exempt certain migrants from Title 42, a deportation rule first introduced under the Trump administration, exempt applies to Ukrainians seeking refuge in the United States.

The memo directs CBP officials at ports of entry to exempt migrants with valid Ukrainian passports from Title 42 and instead treat them under regular immigration procedures, which would allow them to seek asylum.

“The Department of Homeland Security recognizes that Russia’s unjustified war of aggression in Ukraine has caused a humanitarian crisis,” the memo, issued March 11, said.

Ukrainians exempt from Title 42, separate internal DHS guide states, may be treated on a case-by-case basis under a year-long humanitarian probation, which allows immigrants to temporarily legally live and work in the United States.

The guidelines for Ukrainians differ from the application of Title 42 to migrants and asylum seekers from other countries. U.S. border officials have used Title 42 to expel migrants more than 1.7 million times since the directive first went into effect in March 2020, government statistics show.

Migrants treated under Title 42, most of whom are from Mexico, Central America or other Western Hemisphere countries such as Haiti and Brazil, are being deported to northern Mexico or their home countries without being granted permission to seek U.S. asylum apply for.

The Trump-era restriction, which the Biden administration says is still needed to stem the spread of the coronavirus inside border facilities, has also prevented most asylum-seekers from seeking protection at official ports of entry, according to US law is legal.

A Ukrainian family seeking asylum speaks with a Customs and Border Protection officer on the Mexican side of the border in Tijuana, Mexico, March 17, 2022.


Mayorkas stressed Thursday that last week’s guidance reaffirmed border officials’ power to grant migrants Title 42 exemptions based on humanitarian considerations, which may include medical conditions.

“This was political guidance, reminding them of these individualized provisions and their applicability to Ukrainian nationals as they apply to everyone else,” Mayorkas said.

But migrant advocates said the DHS guidelines for Ukrainians show unequal and discriminatory treatment of asylum seekers based on their countries of origin, which is prohibited under international refugee law.

“While it is encouraging to see that DHS recognizes that it does not have to turn away asylum seekers, this has not been applied to people from other countries,” said Kennji Kizuka, associate director of Human Rights First, a US advocacy group.

“Where were the exemptions for Haitian asylum seekers who arrived last fall?” Kizuka continued. “Where are these exceptions for Cuban, Nicaraguan and Venezuelan asylum seekers, for asylum seekers from Guatemala, El Salvador and Honduras?”

Compared to migrants from other countries, US officials process relatively few Ukrainians along the southern border. In February, for example, 272 Ukrainians were taken into US border custody, accounting for about 0.1% of all migrants arrested that month.

But U.S. border agents have processed 1,301 Ukrainians so far this fiscal year, which began in October, a 92% increase from fiscal 2021, government figures show.

Earlier this month, a Ukrainian mother and her three teenage children who fled the Russian invasion were first deported to Tijuana, Mexico, before being relocated after public outcry including Senate Majority Leader Chuck Schumer, a Democrat from New York , registered in the United States.

According to the United Nations refugee agency, more than 3.1 million people have fled Ukraine since Russian troops invaded in late February. The vast majority are now in neighboring countries, including Poland, which is currently hosting nearly 2 million refugees.

Mayorkas reiterated the US assessment that most displaced Ukrainians will be resettled in Europe, but said his department had dispatched refugee officials to the region to review the cases of those hoping to get to the US through the refugee program, a process that can take years to complete.

The Biden administration has come under increasing pressure from Democratic allies to end Title 42, which Republican lawmakers strongly support. She also recently suffered two legal setbacks in federal court that could force officials to amend and limit the evictions.

If upheld, a ruling by a federal appeals court in Washington, DC, next month will require US border officials to screen migrant families traveling with children to ensure they are not deported to countries where they are being persecuted or could be tortured. It could also trigger the end of Title 42 for families with children.

Last week, in response to another court ruling this month, the Centers for Disease Control and Prevention revoked border officials’ power to expel unaccompanied children, who have been exempt from Title 42 since November 2020.

The agency, which acknowledged the improvement in pandemic conditions, also announced in its order that it would have until March 30 to decide whether the deportation of adult migrants and families is still necessary to protect public health.

Mayorkas on Thursday declined to share a timeframe for the termination of Title 42 or details of preparations for the policy’s possible end. However, he noted that DHS is “operationalizing preparations for various possibilities.”

“The duration of (Title 42) will be determined by the CDC on a public health basis based on where we are in the arc of the COVID-19 pandemic,” Mayorkas said, noting the discovery of new coronavirus variants in others parts of the world.

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