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Ukrainians can be considered for asylum at U.S. border, despite pandemic restrictions

Ukrainians find support in Poland
Ukrainian refugees find support in Poland 03:02

U.S. authorities along the Mexican border have been instructed 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.

During a call with reporters on Thursday, DHS Secretary Alejandro Mayorkas said the guidance is designed to remind Customs and Border Protection (CBP) officers that their power to exempt certain migrants from Title 42, an expulsion policy first implemented under the Trump administration, applies to Ukrainians seeking U.S. refuge. 

The memo instructs CBP officers at ports of entry to consider exempting migrants who have valid Ukrainian passports from Title 42 and instead process them under regular immigration procedures, which would allow them to seek asylum.

"The Department of Homeland Security recognizes that the unjustified Russian war of aggression in Ukraine has created a humanitarian crisis," reads the memo, which was issued on March 11.

Ukrainians exempted from Title 42, separate internal DHS guidance states, can be processed on a case-by-case basis under a one-year grant of humanitarian parole, which allows immigrants to live and work legally in the U.S. on a temporary basis.

The guidance for Ukrainians differs from the application of Title 42 on migrants and asylum-seekers from other countries. U.S. border officials have used Title 42 to expel migrants over 1.7 million times since the policy was first enacted in March 2020, government statistics show.

Migrants who are processed under Title 42, most of whom are from Mexico, Central America or other Western Hemisphere nations like Haiti and Brazil, are expelled to northern Mexico or their home countries without being allowed to request U.S. asylum.

The Trump-era restriction, which the Biden administration has said is still needed to curb the spread of the coronavirus inside border facilities, has also prevented most asylum-seekers from requesting protection at official ports of entry, which is legal under U.S. law.

An Ukrainian family seeking asylum talks to a Customs and Border Protection agent on the Mexican side of the border in Tijuana, Mexico, on March 17, 2022. GUILLERMO ARIAS/AFP via Getty Images

Mayorkas on Thursday stressed that last week's guidance reaffirmed border officials' authority to provide Title 42 exemptions to migrants based on humanitarian considerations, which can also include medical conditions.

"This was policy guidance that reminded them of those individualized determinations and their applicability to Ukrainian nationals, as they apply to everyone else," Mayorkas said.

But advocates for migrants said the DHS guidance for Ukrainians showed unequal and discriminatory treatment of asylum-seekers based on their countries of origin, which is barred under international refugee law.

"While it is heartening to see DHS acknowledge that they don't have to turn away asylum-seekers, that hasn't been applied to people from other countries," said Kennji Kizuka, an associate director at Human Rights First, a U.S. advocacy group. 

"Where were the exemptions for Haitian asylum-seekers arriving last fall?" Kizuka continued. "Where are those exemptions for Cuban, Nicaraguan and Venezuelan asylum-seekers, for asylum-seekers from Guatemala, El Salvador and Honduras?"

Compared to migrants from other countries, U.S. officials along the southern border process relatively few Ukrainians. In February, for example, 272 Ukrainians entered U.S. border custody, representing roughly 0.1% of all migrant apprehensions that month.

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

Earlier this month, a Ukrainian mother and her three minor children who fled Russia's invasion were initially expelled to Tijuana, Mexico, before being allowed in the U.S. following public outcry, including from Senate Majority Leader Chuck Schumer, a Democrat from New York. 

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

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

The Biden administration has come under intensifying pressure from Democratic allies to end Title 42, which Republican lawmakers strongly support. It also recently suffered two judicial setbacks in federal court that could force officials to modify and scale back the expulsions. 

If upheld, a ruling from a federal appeals court in Washington, D.C., will require U.S. border officials next month to screen migrant families traveling with children to ensure they are not expelled to countries where they could be persecuted or 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' authority to expel unaccompanied children, who have been exempted from Title 42 since November 2020. 

The agency, which acknowledged improving pandemic conditions, also announced in its order that it will decide by March 30 whether the expulsions of migrant adults and families are still necessary to safeguard public health. 

Mayorkas on Thursday's call declined to share a timeframe for Title 42's termination or specifics regarding preparations for the policy's potential end. But he noted DHS is "operationalizing in preparation for different possibilities."

"(Title 42's) duration will be determined by the CDC on a public health basis, depending on where we are in the arch of the COVID-19 pandemic," Mayorkas said, noting the detection of new coronavirus variants in other parts of the world.

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