Explainer: U.S. Immigration Policies and Their Impact on Latin Americans

This public health measure allows the United States to block the entry of migrants due to the threat of communicable disease based on the rarely used Public Health Service Act of 1944. In this case, the Centers for Disease Control (CDC) enacted it in March 2020 as the Covid-19 pandemic bore down. CDC officials said they had opposed the move for its lack of scientific foundations but had faced pressure from the Trump administration “do it or get fired.” Over the course of time that it was in place, more than 98 percent of Title 42 cases occurred at the southern border. 

While Donald Trump’s government spearheaded use of Title 42 as a means to send migrants to Mexico, the measure remained in place well after his term ended. Biden promised to eliminate it while on the campaign trail. But once Biden took office, Title 42 became a paradox for his administration, with the government facing legal challenges and undertaking steps to both suspend and continue its use. For example, in August 2021, the administration extended Title 42 via a new CDC announcement as the U.S. Department of Homeland Security warned about record migration numbers. The American Civil Liberties Union (ACLU) and immigrant rights groups responded by renewing legal action to end the measure. In November 2022, a federal judge ruled in favor of the ACLU’s side, calling use of the measure “arbitrary and capricious” and giving the Biden administration five weeks to end Title 42. As we see below, this ruling became moot. 

On the other hand, in April 2022, the CDC declared Title 42 unnecessary, and the administration announced it would suspend its use the following month. It would end up taking an entire extra year for this to become a reality. By the time May 2022 rolled around, a Texas court had prevented the White House from ending it after 21 U.S. states argued against the suspension of Title 42. In December 2022, the U.S. Supreme Court ruled that Title 42 would be kept in place indefinitely. 

The legal battle met its end in January 2023 when the Biden administration announced the Covid-19 public health emergency would be over on May 11, 2023, taking Title 42 down with it. In February 2023, with Title 42’s end on the horizon, the U.S. Supreme Court canceled arguments about the legality of the measure. 

The Biden administration now finds itself trying to test new immigration policies in the absence of Title 42, to prevent the flow of migrants, such as reverting to Title 8—the prior U.S. immigration processing code. Title 8 involves rapid deportations, fines, and prison time for attempts to cross without legal permission. The administration is also forging additional rules for granting asylum requests, including measures such as requiring applicants to prove they attempted to gain and were rejected from getting asylum in a third country, and proving they tried to make an appointment through a U.S. government mobile app that allows for just 1,000 appointments per day. 

While Title 42 may no longer be in use, its impact on Latin America has been noteworthy. With millions turned away from the United States, asylum applications in Mexico skyrocketed, resulting in the country having the third-highest rate of asylum requests in the world after the United States and Germany. Mexico received 119,000 applications in 2022 alone, with Hondurans, Cubans, Haitians, Venezuelans, and Nicaraguans counting as the top five nationalities, respectively, seeking refuge there. With Title 42 winding down, the Mexican government has agreed to continue accepting Cuban, Haitian, Nicaraguan, and Venezuelan asylum seekers in a move experts say will cement a policy of Mexico accepting non-Mexican deportees sent from the United States. 

Moreover, in April, as Washington prepared to wrap up Title 42, it also announced plans to open new migrant processing facilities in Colombia and Guatemala. The centers would reportedly begin by processing as many as 6,000 people per month to assist asylum applicants with their requests and paperwork. 

As Title 42 lingered on, the Biden administration launched a new measure, known as humanitarian parole, to create a legal path to asylum for certain nationalities. When it comes to Latin American migration, it began applying this measure in October 2022 for Venezuelan asylum seekers, saying it would accept 24,000 people as part of the program. To qualify, Venezuelans were required to have a U.S.-based sponsor to financially support them for two years. Although the measure created a pathway for some seeking asylum, the Biden administration simultaneously announced that Venezuelans—who had previously been exempted from Title 42—would be turned away under that rule. 

In January 2023, the Biden administration expanded humanitarian parole to 30,000 people for a month. It geographically widened the program as well so that—in addition to Venezuelans—Cubans, Haitians, and Nicaraguans could also gain two-year visas and work authorizations, pending an eligible sponsor and vetting process. 

Just as Title 42 did, the measure faces legal hurdles with a number of Republican-led states challenging it. In March, a Texas judge set a trial date of June for the case. Moreover, while the program allows an immigration pathway for up to 360,000 people from those four countries, it also sets limits. Those who don’t follow the process are subject to deportation to Mexico, which has agreed to take 30,000 people a month from the four countries.

The Migrant Protection Protocols (MPP), often referred to as Remain in Mexico, was a U.S. program that allowed the government to send migrants crossing the southwest border to wait in Mexico while their asylum claims were processed. The Trump administration unveiled MPP in December 2018, implementing it in January 2019. Some 70,000 migrants were sent back to Mexico under the program, and while nearly all were from Spanish-speaking countries, the program expanded in January 2020 to include Brazilian nationals. Migrants from other countries were either deported directly to their home countries or were allowed to stay in the United States while their asylum claims were processed.

Under MPP, large settlements of migrants cropped up in Mexico along the border. Conditions in these camps were squalid and dangerous with migrants vulnerable to criminal groups.

In the first few hours of his presidency, Biden stopped the policy of sending migrants back to Mexico under MPP and allowed migrants in Mexico to come to the United States to await their asylum hearings. This effectively ended MPP until a Texas district court ruled in August 2021 that the program had to be reinstated as the Biden administration hadn’t properly phased it out.

After complying with the court’s demands, the Department of Homeland Security announced once more in October 2021 that it was winding down the program. During the time MPP was reinstated under Biden, 5,000 migrants were placed in the program. As of publication, MPP officially ended, though some Republican senators have pushed for it to be reinstated in light of the suspension of Title 42.

This program, known as TPS, grants residence and work visas to U.S.-based foreign nationals who are unable to return to their home country due to natural disasters, armed conflict, or extraordinary conditions that would put their lives in danger. The country-level designations last six, 12, or 18 months and are frequently renewed. Five of the 15 countries currently designated for TPS are in the Americas: El Salvador, Haiti, Honduras, Nicaragua, and Venezuela.

Hondurans and Nicaraguans first gained TPS following Hurricane Mitch in 1998 while Salvadoran migrants did so in 2001 after an earthquake. Haitians also received the designation in 2010 following an earthquake, then gained it in again in 2021 amid rising security concerns and unrest. Given the political and economic crisis in Venezuela, that country’s nationals gained TPS in 2021. In February 2023, Secretary of Homeland Security Alejandro N. Mayorkas announced an 18-month extension and new TPS designation for Haiti. 

Nearly 670,000 people were either eligible for or were receiving TPS as of April 2023, including newly eligible individuals, such as those in the Haiti 2023 designation, or individuals eligible under previous designations and the current recipients. The vast majority of people covered under TPS—nearly 615,000—are from Latin America and the Caribbean.

Haitians and Salvadorans account for the largest TPS groups with 192,060 and 190,865 individuals, respectively, either eligible or protected. Pending Haitian and Venezuelan applications could lead to a sizable increase in the number of TPS holders. As of December 2022, applications from those two nationalities made up 90 percent of the total backlog, though Latin American countries all have an TPS expiration date in 2024. The earliest is March 10, 2024 for Venezuelan nationals. 

While many TPS holders have been in the United States for years or even decades, they find themselves stuck in immigration limbo, having to renew visas and facing the threat of TPS program suspension. The Trump administration sought to do just that with moves to end a number of TPS designations, including for El Salvador, Haiti, and Nicaragua. However, a 2018 lawsuit prevented the suspensions, and the programs have remained active amid an appeals process. A 2021 Supreme Court decision prevents TPS holders who entered the country without authorization from gaining permanent residence. But, in July 2022, U.S. Citizenship and Immigration Services restored a process allowing TPS holders to potentially leave the United States, regain authorized entry, and apply for green cards if married to or a parent of a U.S. citizen.

Known as DACA, this initiative prevents the deportation of unauthorized immigrant youth, often called Dreamers, who have been in the United States since 2007. As of June 2022, there were 594,120 DACA recipients, though more than a million people were eligible for the program as of 2021, per the Migration Policy Institute. Migrants from Mexico, Honduras, El Salvador, and Guatemala make up the largest number of DACA recipients, in that order. The decade-old immigration program has endured a number of changes—and legal challenges—throughout its lifetime.

In 2017, during the Trump administration, DHS rescinded DACA, which meant that Dreamers began to lose their work permits and protections from deportation. Then, in June 2020, the Supreme Court declared the move unconstitutional but did not rule on the legality of DACA. While DHS resumed processing DACA renewals, which must be done every two years, it did not accept new applications.

Biden pledged to establish a path to citizenship for DACA recipients and make them eligible for federal student aid, but the program has faced a series of legal challenges since he took office. In January 2021, he issued an executive order to “fortify and preserve” DACA, leading DHS to accept new applications. From that point until July 2021, DHS approved some 1,900 applications. At that point, a federal judge ruled the program illegal. The Department of Justice (DOJ) appealed the ruling, sending the case to the 5th U.S. Circuit Court of Appeals.

Meanwhile, Biden announced that the DHS would propose a new rule that would implement DACA as a federal regulation, effectively circumventing the federal court decision. DHS issued that rule in August 2022, and it is set to take effect at the end of October.

At the same time, earlier this month, an appellate court backed the ruling preventing new applications, sending the case back to the Texas lower court to take up the new DHS regulation. As of May 2023, DACA is a federal regulation and remains under review by U.S. District Judge Andrew Hanen, who could release his decision on the legality of the program at any time. As of the time of publication, Dreamers remain protected from deportation and can renew their DACA status, but new applications remain on hold.