The Biden administration is preparing a return to pre-pandemic border enforcement, a change officials and immigration advocates say will make the border harder to cross, not easier.
The administration hasn’t changed its plan for responding to a potential uptick in migration following the lifting of Title 42 – but it has changed its messaging.
The Trump-era policy permitted the expulsion of migrants without allowing them to seek asylum, and the administration’s plan to rescind the policy by May 23 has caught flak from both sides of the aisle.
Border hawks have painted the policy as a necessary tool to keep immigrants out of the country. Some Democratic senators have joined their Republican colleagues in battering the administration for a lack of plan to deal with the possible surge in migration to the border.
But White House officials have begun to telegraph that their post-Title 42 response will actually lead to tougher immigration enforcement, a position long held by immigration and border security experts.
“We have immigration laws that existed before Title 42,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
“It’s very easy to forget that but Title 42 has barely been around for two years.…There are a lot of people who seem to think that ending Title 42 means adopting a blank slate of immigration policies, but there are laws and policies that are on the books that I will note have been used for people who can’t be expelled under Title 42 and that are going to be used a lot more after Title 42 ends.”
The Department of Homeland Security (DHS) in March outlined how it would increase its logistical response at the border for everything from shelter, to transportation to personnel and processing capacity. It’s a team needed both to do intake for asylum seekers and to begin deportation proceedings for others.
Lawmakers have all but ignored the administration’s plans, but the White House has said surge in resources will be necessary as it looks to deport any migrant without cause to remain in the U.S., and to prosecute repeat unauthorized border crossers.
The core of the administration’s plan is a return to border enforcement based on immigration law, rather than Title 42’s purported basis on public health policy.
“Let me reiterate again – Title 42 is not an immigration authority. It was a public health directive determined by the CDC. With Title 42 in place, a significant percentage of migrants have re-attempted to enter the United States illegally following their rapid expulsions because they were not placed in immigration proceedings, not processed through our system, and ultimately faced no consequences for attempting to re-enter the country illegally,” a White House spokesperson told The Hill.
Privately, the administration has argued to allies this is a tougher immigration stance.
A return to Title 8, as regular border processing is known, would automatically fix at least two of the top flaws in the Title 42 policy: it triggered repeat border crossings by individuals, and it crippled the U.S. asylum system.
The Trump administration had sought to shrink the asylum system from the get-go, derisively referring to the policy of releasing prospective asylees into the United States as “catch and release.”
As part of that administration’s efforts to respond to the pandemic, Trump immigration policy architect Stephen Miller convened policy discussions to involve the Centers for Disease Control and Prevention (CDC) in border management, implementing a hardline interpretation of the executive’s emergency public health powers to quickly expel – rather than process and deport – migrants at the border.
While blocking asylum claims, the quick expulsions reversed progress made in combating surreptitious crossings by no longer criminalizing repeat unauthorized entries to the United States.
After Title 42 is lifted, migrants who are deemed to have legitimate asylum claims will be allowed to enter the U.S. and await their appearance date in the immigration court system, which currently has a yearslong backlog.
That process, although derided as “catch and release” by immigration hawks, is a complicated path for migrants.
“The idea that getting rid of Title 42 means ‘allee allee in free’ is again a propaganda victory of the right wing media ecosystem, which has had too much influence over the mainstream media coverage because the administration is not engaged in it,” said Frank Sharry, founder of America’s Voice, a progressive immigration advocacy group.
While asylum seekers can spend years living and working legally in the United States before the courts decide their case, they are technically a short step away from removal from the country, if their case is denied or they are otherwise deemed ineligible for asylum.
“If you present at a port of entry, and you say ‘I’m seeking asylum, I’m an asylum seeker,’ what happens to that person? They’re put in immigration proceedings, or issued what’s called a notice to appear – that’s a charging document. It charges you with violating the immigration laws,” said Karen Tumlin, founder of Justice Action Center, a courtroom immigrant advocacy group.
“Now, a lot of them are released because they’re not a threat to the United States and they’re not a flight risk. We don’t have detention capacity and it would be a horrible use of our resources to detain those folks. That doesn’t mean it’s not a civil immigration violation,” added Tumlin, who litigated against the Trump administration’s termination of the Deferred Action for Childhood Arrivals program.
And immigrants who do not present a valid asylum case will be placed in expedited removal proceedings, which, though not as speedy as Title 42, will still lead to their deportation, and, if they again cross illegally between a port of entry, could face felony illegal reentry after removal which carries prison time.
“There will still be people who are released at the border and put into immigration court proceedings to have their case heard because asylum is a legal process and the Biden administration has no more right than the Trump administration to simply deny people their right under the law,” Reichlin-Melnick said.
“While expedited removal is a policy that is often used poorly and has many flaws and that we certainly don’t endorse, expedited removal offers the Biden administration significantly more ability to impose long lasting consequences on people who cross the border who are not seeking asylum.”
The claims from some senators that the U.S. should retain Title 42 because the Biden administration has no plan has irked some refugee and immigration advocates.
Advocating to keep Title 42 is arguing in favor of quashing a legal right to the U.S. asylum system, said Sunil Varghese, policy director of the International Refugee Assistance Project.
“[Politicians] are saying that refugees, predominately Black and Brown refugees, cannot even ask for asylum if they get to the U.S., and should actually be expelled, without any immigration process, back to the country they are fleeing because of the risk they in particular would spread COVID into the U.S.,” he said.
“The incongruity and perhaps the intent is plain. Proponents of Title 42 see it as a border control measure, when it is actually a Trump and Steven Miller-era xenophobic policy to keep out refugees of color and from particular nationalities.”
And for Reichlin-Melnick, claims there is no plan to address migration rings hollow.
“There is a plan the Biden administration has said they have a plan. And that plan is, by and large, surging resources to the Border Patrol to avoid overcrowded Border Patrol cells like we saw in spring of 2021,” he said.
“That said it’s not a plan to stop people from coming to the border. It’s a plan to respond to the numbers and ensure that people are treated well…. There are people who would say that that’s not the right plan, that they shouldn’t be doing a plan that simply stops migrants from coming. That’s not feasible.”