Joe Biden brought on the surge of migrants at the U.S. border, and it’s about to get bigger.
The White House will end Title 42 — a Trump-era CDC policy that turned away asylum-seekers to prevent the spread of Covid — on May 23, removing the last defense against a complete deluge at the border. According to U.S. intelligence officials, there could be another 170,000 migrants at the border in short order.
On Wednesday, the White House warned of an impending “influx at the border” (but still, presumably, not a crisis).
The Department of Homeland Security (DHS) has started preparing for scenarios for a cataclysmic 18,000 apprehensions a day, and DHS deputy secretary John Tien went so far as to ask employees to join a “DHS Volunteer Force.”
Jeh Johnson, Obama’s DHS secretary, has said that anything over 1,000 daily encounters “overwhelms the system” and anything over 4,000 is a “crisis.” DHS is currently reporting an average of 7,100 daily encounters, up from 5,900 in February.
Biden has dismantled or curtailed most of Trump’s policies that succeeded in getting control of the border, and has reaped the whirlwind. According to Border Patrol, it has encountered an astonishing 1 million migrants over just the last six months. To keep that from going higher, the administration has kept Title 42 in place, even though immigration activists hate it.
At the outset of the pandemic, Title 42 was invoked to address the public-health risk of migrants coming to the border in large groups through multiple countries without being screened, then being held in facilities that hadn’t been built with social distancing in mind. The situation would obviously have been unsafe for Border Patrol agents who can’t call into their job via Zoom.
Under Title 42, migrants could simply be turned around at the border. The Biden administration has been making less extensive use of the authority than its predecessor. By and large, it also hasn’t been returning migrants to their countries of origin, which makes it possible for them to wait in Mexico and make repeated attempts to cross into the U.S. Still, potential migrants, especially single adults from Central American countries, know it is one of the most effective remaining barriers to their entry into the United States (family units and unaccompanied minors are basically all being released into the country). Word will quickly spread of its impending end and create an enormous magnet for more migration.
It’s possible to imagine grounds for keeping Title 42 — more than 500 people a day are still dying of Covid and public-health authorities warn of the risk of new variants. But as mask mandates have dropped around the country and Covid has waned, the case for Title 42 has grown increasingly attenuated and presumably will continue to do so. It was never supposed to be simply an immigration-control measure, and we shouldn’t have to look to the CDC for the authority to exclude illegal immigrants from the United States.
Title 42 wouldn’t be such a crutch if Biden would re-embrace other Trump measures, from expedited removal — allowing the rapid expulsion of illegal immigrants who have been here less than a year — to the Safe Third Country agreements that were used to get migrants to apply for asylum in other Central American countries. The most important such measure was the Migrant Protection Protocols (MPP), or “Remain in Mexico.”
Under Trump, asylum-seekers were told to wait in Mexico for their hearings. This was important because we have limited ability to detain asylum-seekers in the U.S. while their claims are adjudicated. Once we release them into the U.S., they are unlikely to leave even if their claims are rejected, as the vast majority are. Biden foolishly ended the program. Even after the courts ordered its reinstatement, Biden has barely been making use of it.
Detention facilities have already been getting overwhelmed, leading to mass releases. In January, 55,000 migrants were released into the United States. One can only imagine what the border will look like with the end of Title 42.
One Biden administration recourse may be to effectively recategorize illegal immigrants as successful asylum-seekers. DHS and DOJ are set to implement a “rubber-stamping” policy that will allow asylum officers to adjudicate asylum claims without immigration judges. If there are no court proceedings, ICE attorneys will no longer have the chance to question the stories of asylum-seekers, and asylum officers are notoriously lax in considering claims. Perhaps this new rule will be enjoined by a court, but it would be yet another incentive for migrants to seek to enter the U.S. illegally.
At the border, as elsewhere, the best rule of thumb under Joe Biden is simple — it’s going to get worse.