The Biden administration is about to change the way immigration is handled at US borders because, once again, Americans have no meaningful immigration legislation from Congress.
Next week the administration will stop using Title 42, the health law imposed during the coronavirus pandemic to control migration at the US-Mexico border. Instead, the administration will revert to Title 8, the nation’s immigration law.
In the meantime, little is expected from a divided Congress, beyond legislation focused on enforcement and that meant more to what was happening at the border a decade ago.
“Congress makes the laws, and they deserve some of the blame here. I don’t expect much from them right now based on what we’ve seen in the last two decades,” said David Bier, associate director for immigration studies at the Cato Institute, a libertarian think tank.
President Joe Biden has been preparing for the change with other tools, including creating processing centers in Guatemala and Colombia where people can apply for asylum before reaching the southern border. The administration also requires people to use an appointment-making computer application to apply for entry. He has tapped American sponsors and focused on reunifying families, providing humanitarian parole to some fleeing Haiti and Latin America and forging deals with other countries, including Mexico.
«They’re relying a little more on processing or allowing people to apply for some sort of asylum or humanitarian parole before people get to the border,» said Theresa Cardinal Brown, senior adviser on immigration and border policy at Bipartisan Policy. Center, a Washington think tank. “The previous administration would not have done that. He would have simply tried to avoid asylum.»
There is collective contention right now about what will follow once Title 42 is gone. What is certain is that politicians will use it as a talking point to place blame as the transition occurs.
But without any congressional action for decades, immigration policy has largely fallen to the executive branch, leading to inconsistent crisis response policies. Aspects of such policies are often litigated in court, making them temporary.
Congress has focused primarily on enforcement of the law, which fails to address the fact that the current deterrent system, designed to prevent single adults from Mexico from crossing the border illegally, was not created for the wave of asylum seekers. arriving at the border from everywhere. the world, Brown said.
“You can’t rely on deterrence alone. You can’t trust messaging. It’s got to be an overkill strategy here, and I think what we’ve had for too long is this debate about shutting everything down and just keeping people from coming in… or everyone deserves a chance to ask and our system can’t. Neither of those is the correct answer. It has to be somewhere in between all of those things,” he said.
The number of people crossing initially decreased when Title 42 was implemented. But by the time it launched, people had stopped moving globally due to the pandemic, and there were few jobs available in the US with everything shut down, he said Edward Alden, senior member of the Foreign Policy Council. Within three months, arrivals at the US border and arrests were back to pre-Title 42 levels, he said.
More expulsions and more repeat border crossings
“We had a new set of problems at the border that we haven’t seen since before the Great Recession, and those are people repeatedly crossing and getting caught up under Title 42 and being returned to Mexico and then trying again,” Alden said.
The problem has been that, unlike Title 8, the regular immigration law, Title 42 doesn’t punish people who cross the border repeatedly.
As a result, more people who have been turned away have crossed over again, particularly single adults. In 2019, around 20% of single adults in Mexico and the Northern Triangle had been previously arrested. Under Title 42, nearly half were, according to an analysis Bier published in December.
The number of people who were caught entering the country illegally but were not arrested, known as «fugitives,» rose from 12,500 a month in 2019 to more than 50,000 a month last year, Bier found.
“Title 42 basically prohibits people from applying for asylum in the United States. Those are the teeth of politics,” Bier said. But because Title 42 prevented people from applying to legally enter the country at ports of entry, the only way to get in was to try to avoid Border Patrol and slip through. It also did not deter those who never intended to seek asylum, he said. saying.
“From a security perspective, you got all the incentives backwards. He created a situation where we have never seen so much border evasion in the last two decades,” she said.
According to Bier border data analysis91% of the people expelled in October were single adults from Mexico and the Northern Triangle countries of Mexico, Honduras and El Salvador.
Bier also found that even though Title 42 was targeted at those groups, the number of single adults arriving from those countries quadrupled, from an average of 21,000 a month to nearly 80,000 a month.
Some of the most sensational images from the border came in Del Rio, Texas, when hundreds of Haitians were being surrounded by Border Patrol agents on horseback and swinging leather reins to force them across the river. After an outcry, the administration began making exceptions to Title 42 for Haitians, allowing them to apply for asylum at ports of entry, as had been allowed before Title 42.