The lifting of Title 42 means the Biden administration now faces a border bottleneck created over two years as the United States denied migrants their legal pathway to seek asylum.
The issue is already turning into a major political fight, with Republicans seeking to target the administration as lenient on immigration by lifting a rule they see as a “common sense” border control measure.
And some Democrats in tough elections are seeking to distance themselves from the Biden administration’s decision, joining in the alarm over a wave of migrants.
The reality, however, of Title 42 and what its lifting means for the border is much more nuanced and complicated.
Title 42, crafted under the Trump administration at the start of the pandemic, used a public health authority to quickly deport foreign nationals without giving them the opportunity to seek asylum.
This is a policy that directly contravenes the Asylum Act, which grants the right to a hearing for asylum claims.
Experts say Title 42 didn’t create Republicans’ ‘closed’ border claim, but rather contributed to the chaos as it allowed Mexican and Central American nationals to try again to cross unauthorized borders after being expelled.
“I’m here today with a clear message: Title 42 has failed,” Aaron Reichlin-Melnick, policy adviser at the US Immigration Council, told the House Homeland Security Committee this week.
“One statistic most clearly demonstrates the failure of Title 42. Since Title 42 came into effect, Border Patrol has deported 94% of the single adult migrants it encounters who come from Mexico, Guatemala, Honduras or El Salvador. If Title 42 were an effective deterrent, we would expect such a near-total border closure to result in fewer arrests,” Reichlin-Melnick added.
Many say Title 42 itself will now be a key factor contributing to border pressure, creating a bottleneck after years of denying immigrants the legal right to seek asylum.
And its end will likely be heralded as a relaxation of US border controls by smugglers who could find a large clientele with increasing global migration.
But the numbers may not be as high as some predict, and the Biden administration has pledged to quickly deport those without a legal right to stay in the United States, a stance that could lead them rely more on other Trump-era policies.
“Migrant encounters are likely to increase because there are thousands of people who have been deported in the past two years who may still want to migrate…and we know from past cases of lifting of restrictive policies, that smugglers take advantage of these changes for migration saying that now is your best opportunity to get to the United States,” said Jessica Bolter of the Migration Policy Institute.
“So the fact that there have been people blocked from entering the United States who still want to enter and the fact that this story of a new opportunity to enter the United States is likely to spread, both mean that we are likely to see an increase in crossings,” Bolter.
The Department of Homeland Security (DHS) is already preparing for such a push, a move they say could stem from Title 42 as well as some’s preference to migrate in the spring, when warmer weather can facilitate travel. still dangerous.
But as the department braces for figures as high as 18,000 crossings a day – a jump from current migration levels of around 7,000 a day – experts say such a total may not be maintained over the long term.
“If that were the case, if we saw 18,000 migrant crossings a day, and if that continued for a month, that would be a higher level of migration than we have seen in at least the last two decades, which is as far as we have good data,” Bolter said.
Experts say a first wave could subside.
“One thing to consider here is the number of migrants already at the US-Mexico border,” said Cris Ramón, a migration consultant, pointing to estimates ranging from 30,000 to 60,000 migrants near the southern border.
“I think that’s where people miss the most important point, which is that the Mexican government is working very closely with the United States to control migration into Mexico and at the US-Mexico border. One thing to consider is that Mexico may continue to adopt harsh policies making it more difficult to access the US-Mexico border,” Ramón said.
Mexico recently required citizens of Ecuador, Venezuela and Brazil to obtain a visa before arriving in Mexico, a step likely to block nationals seeking to travel to the US border.
And those who attempt to cross the border will now face harsher consequences for doing so.
While Title 42 has been used 2.5 million times, at least 27% of those included in this figure have attempted to cross the border at least twice.
“Especially for unmarried adults, simply being returned to Mexico under Title 42 is a less severe consequence than they would have suffered before Title 42, when they were subject to legal proceedings. formal expulsion or even would have been criminally prosecuted,” Bolter said.
“And because with Title 42 there’s no official mark on their record, it’s a lot cheaper to try over and over and get caught over and over again,” Bolter added.
The tools available to the Biden administration won’t work as quickly as Title 42, but they could, over time, have a greater deterrent effect than Trump-era politics.
Most will be placed in what are called Title 8 procedures, which Bolter says will take “weeks, not hours,” but are carefully documented.
The interest in speed could push the administration to rely more on the Trump-era Stay in Mexico program, which requires asylum seekers to wait in Mexico for their US court date. .
The Biden administration reimplemented the policy due to a court order, but officials acknowledged its use could swell after Title 42 is lifted.
“It is very concerning to us because Remaining in Mexico returns asylum seekers to the same dangerous threats that asylum seekers deported under Title 42 have faced, so from a human rights perspective , it’s just as concerning as title 42,” Kennji Kizuka said with Human Rights First.
“DHS has had over a year now to prepare for the end of Title 42, so [there’s] no excuse for not being prepared to process asylum seekers at entry points and along the border,” he said.
The administration recently launched a program under which U.S. citizenship and immigration officials will first review asylum applications, a move aimed at easing pressure on the U.S. justice system. immigration. Designed to be rolled out in phases, it can only have a limited impact, especially if Congress does not approve funding for additional officers.
And new asylum cases are sure to pile up in the immigration court system, even though Immigration and Customs Enforcement have their own lawyers to deal with low-priority cases.
But if DHS succeeds in streamlining the asylum process, the images of chaos at the border could be replaced by processing lines and buses into the interior of the United States.
While that may help vulnerable Democrats attract some independent voters who are fed up with the chaos, many Republicans are already adjusting their message to hit a high immigration number, orderly or otherwise.
For example, Trump-aligned Ohio Senate candidate JD Vance ran an ad this week claiming that “Joe Biden’s open border is killing Ohioans with more illegal drugs and more Democratic voters flocking to this country”.
Immigration advocates say 2016-style anti-immigrant rhetoric will figure into the 2022 midterms no matter what and that Democrats better look to positive changes in immigration policy.
“For the GOP, the border is politics, not solutions. All Republicans have to offer are nasty attack ads, lies about ‘open borders’ and the same cruel and chaotic policies that Trump and Stephen Miller advanced,” said Frank Sharry, executive director of ‘America’s Voice.
“Democrats can walk and chew gum at the same time. We can have a secure border and a fair and functioning asylum system. We can be human and orderly. Let’s be who we are as a party and a nation, rather than encouraging a party that seeks to dehumanize immigrants and refugees to score political points,” Sharry added.