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Title 42 ended. How is the Department of Homeland Security handling the situation?

A MARTÍNEZ, HOST:

With the expiration of the pandemic-era border restrictions under Title 42, the Biden administration has a message for migrants seeking to cross the southern border illegally - don't. Immigration policy this morning looks very different than it did yesterday. Those who enter the U.S. illegally could be banned from returning for at least five years, and repeat offenders could face prosecution. Here's what Homeland Security Secretary Alejandro Mayorkas had to say earlier this week.

(SOUNDBITE OF ARCHIVED RECORDING)

ALEJANDRO MAYORKAS: The lifting of the Title 42 public health order does not mean our border is open. In fact, it is the contrary. Our use of our immigration enforcement authorities under Title 8 of the United States Code means tougher consequences for people who cross the border illegally.

MARTÍNEZ: Also, for many migrants who seek asylum at the southern border, they'll need to show they were turned down by a country they crossed first before asking the U.S. for asylum. Joining us now is Blas Nunez-Neto. He's assistant secretary for border and immigration policy at the Department of Homeland Security. He's speaking to us this morning via Skype. Moments after that requirement went into effect last night, the ACLU filed a lawsuit to stop the rule, saying it, quote, "closes off access to safety for the majority of people seeking asylum in the U.S." What is your response to that?

BLAS NUNEZ-NETO: Good morning, A. We believe that couldn't be further from the truth and that this is nothing like what the Trump administration did. You know, their efforts cut off all legal pathways to the U.S., including access to our ports of entry for asylum-seekers and the refugee process. They categorically barred migrants from claiming asylum, and they even separated families from young children at the border. You know, what we have done is really oversee a historic increase in lawful pathways to the U.S., including at our ports of entry through the CBP One application. We are allowing migrants to claim asylum but placing what we believe are some commonsense conditions on it. And we are also significantly expanding family reunification programs.

MARTÍNEZ: But the thing is, yeah, Title 8 does not require a migrant who arrives at a point of entry for the first time and ask for asylum to show that they were denied asylum somewhere else first. So how does this rule square with Title 8, which is the law of the land?

NUNEZ-NETO: Again, we believe it is well within our authorities. And what we are really trying to do here is incentivize migrants to use safe, lawful and orderly pathways that, again, we have expanded dramatically over the last two years. But also, you know, there has to be a consequence at the border for individuals who continue to cross irregularly despite having these options available to them. And what we are doing with this rule is really trying to disincentivize migrants from crossing irregularly and putting their lives in the hands of, you know, these drug cartels and criminal organizations that are, you know, fundamentally exploiting migrants to bring them here.

MARTÍNEZ: But why isn't that something that Congress would have to add after the fact? Title 8 is in effect. It's always been in effect. It seems like this is something added that isn't in Title 8.

NUNEZ-NETO: Again, we think this is within our statutory authorities. But you're absolutely right that we need Congress to act. The bottom line is that we are seeing these surges of migration now for, you know, going on 20 years under presidents of both political parties. You know, different administrations have tried to deal with this challenge through executive action, you know, in different ways. We are obviously doing that ourselves. And that has invited the courts to step in in ways that are, frankly, deeply unhelpful. And so at the end of the day, we are clear-eyed that there is no lasting solution here that does not involve the U.S. Congress stepping up.

You know, we introduced comprehensive immigration reform on the first day of this administration. It has gone nowhere in Congress. We are, you know, reaching out to members from both sides of the party to really ask them to come together in a bipartisan way to solve this problem.

MARTÍNEZ: And one more thing quickly - about 30 seconds to go. What is the federal government doing to help border communities deal with any influx of migrants?

NUNEZ-NETO: You know, we do have a grant program that has supported local communities and NGOs, and Congress did increase funding for it last year. However, we recognize that it's a small fraction of what is needed. And again, only Congress can really address this issue.

MARTÍNEZ: That is Blas Nunez-Neto, assistant secretary for border and immigration policy at the Department of Homeland Security. Thank you very much.

NUNEZ-NETO: Thank you, A. Transcript provided by NPR, Copyright NPR.