Biden’s Self-Induced Border Disaster

T his week, Axios reported that the Biden administration is gearing up for a “mass migration event,” according to anonymous administration officials. Border officials could experience a swell of over 170,000 migrants if the administration repeals Title 42, a Trump-era policy that automatically expelled migrants seeking asylum because of public-health risks from Covid. Officials at the Department of Homeland Security (DHS) have already warned Mexican officials that there could be an influx of migration in the coming months.

Title 42 was issued by the Centers for Disease Control on March 21, 2020. The order stated that migrants traveling through Canada and Mexico into the United States posed “a serious danger of the introduction of COVID-19” into the country and that “temporary suspension is necessary to protect the public health.”

Under both Trump and Biden, Title 42 has been criticized for its lack of grounding in public health. Anne Schuchat, who was No. 2 at the CDC under Trump, said that the policy was criticized by some officials within the CDC itself and that the policy “may have been initiated for other purposes.” Critics of various political affiliations have called the policy arbitrary from a public-health standpoint. In my report on Title 42 last week, I cited Lee Gelernt, the ACLU’s lead attorney against the policy, and Mark Krikorian, an immigration hawk, who both characterize the policy as unnecessary on the grounds of public health. Krikorian called it a “crutch” and a “dishonest means of damage control by this administration.”

Biden, who once described this policy as having an “incredibly negative impact . . . on human dignity,” has essentially felt compelled to preserve Title 42 amid a surge at the border as a means of keeping it in check. Under Biden, Customs and Border Protection (CBP) has turned away more migrants on Title 42 grounds than it did under Trump. There have been a total of 838,685 encounters at the southern border during fiscal year 2022. Encounters are on pace to exceed the 1,734,686 encounters in FY 2021.

Graphic from U.S. Customs and Border Protection

With numbers like these, Title 42 is a critical form of border control for the Biden administration. Yet the White House will not be able to defend the policy much longer. Aside from the waning urgency of Covid, the president is facing harsh criticism from leading Democrats like Senate majority leader Chuck Schumer and Senator Bob Menendez as well as immigration activists. The courts are also starting to water down the potency of Title 42. In the D.C. Circuit court decision in Huisha-Huisha v. Mayorkas this month, the judges upheld Title 42 but exempted migrants with claims to persecution and torture. In their decision, the judges made clear that the balance of equities “favors the Plaintiffs” as Title 42 seems to be a “relic from an era” with fewer tools to manage Covid.

Title 42, which is reevaluated every 60 days, is set to expire April 6 in the absence of another CDC renewal. This gives the Biden administration a chance to live up to its promises for progressive border policy. Indeed, at a White House press conference on Monday, a reporter asked Jen Psaki if the president plans to “reopen the border and make more humane policy, like he promised.” Psaki answered by saying that “just because [the promise] is not done yet, it doesn’t mean that we aren’t going to stay at the fight to get exactly that accomplished and done.”

Given the likelihood of Title 42’s expiration, the Biden administration has an impossible task ahead: enforcing border policy without implementing border policy.

The surge of migrants at the border is incentivized by a White House that has been releasing migrants into the interior of the U.S. instead of detaining them, per Title 8. Andrew Arthur, a former immigration judge and a resident fellow at the Center for Immigration Studies, told National Review that “detention is the strongest tool that DHS has to dissuade illegal migrants from coming to the United States . . . By releasing that many . . . illegal migrants, [the White House] is boosting the incentives for other migrants to enter this country illegally.” If Title 42 is repealed, that incentive grows. “There’s going to be a surge of individuals that the Biden administration has no capability to detain, even if it had the inclination,” said Arthur. The anticipated and likely imminent surge of over 170,000 migrants would totally overwhelm border officials and infrastructure.

One reason that Title 42 was an effective means of border control was that it cut down migrant-processing time to 15 minutes per person. Under Title 8, the usual procedure for migrants, processing takes an hour and a half to two hours per person.

CBP is not ready for conditions like these; border encounters are already at a 21-year high, and Arthur predicts a record surge of around 2 million migrants by the end of FY 2022. In FY 2000, CBP apprehended 1.644 million migrants. In FY 2021, it apprehended 1.734 million. There is, however, a key operational difference: According to Arthur, in 2000 almost all apprehended migrants were “Mexican nationals that were single males.” “Mexico is obligated to take back its nationals,” he said, so expelling these migrants was relatively straightforward. Today, by contrast, the border is experiencing a higher volume of nationals from outside of Mexico, many of whom come as unaccompanied minors and family units. The processing time and procedure for this demographic is more complicated; CBP’s “capacity to process and care for those individuals is much more difficult and the time that it takes is much longer.” Arthur said that most CBP facilities were built in the 1990s and 2000s for a demographic of single, adult migrants, not families.

To prepare for the impending crisis, the Biden administration has initiated the Southwest Border Coordination Center, which Axios describes as “a war room to coordinate an interagency response.” Axios obtained an email sent Wednesday by DHS deputy secretary John Tien requesting that employees “consider stepping forward to support the DHS Volunteer Force.” Axios also reported that the administration is ready to expand and build “soft-sided facilities that can shelter up to 2,000 migrants apiece.”

Without Title 42 to hide behind, the Biden administration will be forced to make good on the president’s promise for a more open, humane border. But that’s a promise they are likely not ready or able to keep.