A furore over a public-health rule highlights America’s broken immigration system

When your rivals start offering their sympathies, you know you’re in trouble. Recently, this has been happening to Henry Cuellar, a Democratic congressman representing Laredo in South Texas, because of the Biden administration’s move to end “Title 42”, a border-management tool. “I’ve talked to a lot of Republicans, and they said, ‘We cannot believe, Henry, that the White House has given us our narrative,’” he says. (Mr Cuellar is in a tough primary election on May 24th, with border policy an animating issue.) The White House’s hope of lifting Title 42 from May 23rd played into the idea that Democrats are stoking disorder at the border.

Title 42 is a public-health rule invoked in March 2020 by President Donald Trump’s administration to combat the spread of covid-19. It aimed to seal America’s borders from migrants, allowing the immediate expulsion of border-crossers, including asylum-seekers. The policy has been used in nearly 1.9m instances, and has endured despite America reopening to travelers. Under Title 42, Customs and Border Patrol (cbp) can rapidly expel certain migrants to Mexico, instead of putting them through formal deportation proceedings. President Joe Biden has had to balance concern over rising numbers of migrants with his desire to create a more humane immigration system and honor the legal right of people to seek asylum.

Opponents of ending Title 42, including Mr Cuellar, believe lifting it could add to the current migrant surge (see chart). In April, cbp apprehended migrants around 234,000 times at the southern border, the highest number in more than 22 years. Most were in South Texas. Alejandro Mayorkas, the secretary of homeland security, has said once Title 42 is lifted as many as 18,000 migrants a day could arrive—more than double the daily average in April and 11 times the daily average from 2014 to 2019.

A coalition of Republican states has sued to block the lifting of Title 42, and a federal judge ruled on May 20th that it must stay in place. Congress could also weigh in, and the White House is going to appeal against the judge’s ruling. According to Aaron Reichlin-Melnick of the American Immigration Council, a think-tank, “It’s exceedingly unlikely that Title 42 is before the mid-term elections ended.” He predicts that the Supreme Court could ultimately take it up next year.

Designed as a public-health measure, Title 42 is flawed as a border-management tool. Migrants do not face charges for repeated entry, as they would if they were processed under normal immigration law. This encourages repeated attempts to cross. Recidivism surged from 11% in 2018 to 27% in 2021, inflating the number of apprehensions that cbp reports. “Until tomorrow,” one man recently told a border official, as he was about to be expelled.

The measure has also contributed to wildly different outcomes at the border, depending on a migrant’s nationality. Mexico accepts back Mexicans, Guatemalans, Hondurans and Salvadorans removed under Title 42, but not people from most other countries. Without the capacity to send these migrants home, cbp often releases them into America.

At first, Title 42 “slowed people from coming”, but it ultimately “made border management less predictable and therefore gave people hope of getting in”, says Andrew Selee, president of the Migration Policy Institute, another think-tank. As the number of asylum-seekers grows, border officials do not have the capacity to screen everyone for “credible fear”, and many are being released into America with a notice-to-appear for immigration court. “The us government shouldn’t be in the business of letting people in who don’t have a legal document to come or don’t need humanitarian protection, but there’s no process to determine that right now,” says Mr Selee.

Morale among Border Patrol officers is the lowest it has been in at least 25 years, says Richard Douglas, who formerly worked for cbp and now runs security for the East Foundation, which owns ranchland in South Texas. Around 60% of cbp agents have been assigned to process migrants, taking them away from field work. One border expert estimates that fewer than 20% of people trying to cross the border undetected are stopped. The Department of Homeland Security is so desperate for manpower that it is soliciting volunteers. The National Guard has been deployed, causing whole hotels in South Texas to book out, and Texas is now requiring border tours-of-duty by state law-enforcement officers.

Three larger points are easily lost amid the noise about Title 42. One is that high levels of migration are occurring globally and are not exclusive to America’s southern border. More people are displaced from their home countries than at any time since 1945. Covid-hit economies, violence, persecution and hurricanes have pushed Central and South Americans to move. Last year in Mexico, a record 131,000 people applied for asylum.

As a result, the migrants arriving at America’s southern border are more diverse. Previously, they were mainly Mexicans, Salvadorans, Hondurans and Guatemalans. But instability elsewhere has led to large numbers from other countries, including Ukraine, to show up (see chart). In February 2021, when your correspondent visited the “humanitarian respite center” run by the Catholic Relief Services of the Rio Grande Valley, it was full of Central American families released by cbp. Recently, most of families there were Haitian. In the first seven months of this fiscal year, those stopped by cbp at the southern border included about 52,000 Colombians, compared with just 401 in 2019, and 6,700 Turks, up from 57 in 2019.

Second, the fuss over Title 42 points to courts’ greater involvement in setting immigration law, in the face of Congress’s failure to make substantive changes. “The judiciary is now making our immigration policy on an ad hoc basis in different courts across the country,” explains Theresa Cardinal Brown of the Bipartisan Policy Center, also a think-tank. When Mr Biden tried to end the Migrant Protection Protocols (mpp) programme, which forces asylum-seekers to wait in Mexico pending their immigration hearing, Texas and Missouri sued, and a federal judge ordered Mr Biden to restart the mpp. the fate of the mpp will be determined by the Supreme Court, and a decision is expected soon.

Tight Hill faulty, too

The fact that so many people want to rely on an obscure public-health tool as a border-management strategy points to a third issue: how dysfunctional America’s immigration system is. Designed for a time when most migrants were Mexican single adults trying to come to America for work, today whole families and children are arriving from around the world, many seeking asylum. Yet politicians have myopically focused on Title 42’s fate. A recent memorandum from Mr Mayorkas pointed the finger at Capitol Hill: “We are operating within a fundamentally broken immigration system that only Congress can fix.”

The Biden administration is about to introduce a faster system for adjudicating asylum claims of new arrivals, but that will not tackle the record backlog of asylum cases waiting years for resolution. (True to form, Texas has sued to block the administration’s move.) According to Mr Cuellar, the White House has been too close to immigrant-rights advocates, without listening enough to border communities and law enforcement. When he encouraged the Biden administration to show images of people being deported so as to discourage migrants from making the trek to America, he was told that the White House didn’t want to “antagonize” immigration activists. Sister Norma Pimentel, who runs Catholic Relief Services of the Rio Grande Valley, says the administration appears “uncertain as to how to proceed.”

Last year 650 migrants (and probably many more) are known to have died trying to enter America, the deadliest year on record. Some, including this newspaper, have argued that Mr Biden, his senior advisers and members of Congress should travel to the border to witness the mess. Others want action, not a border tour. “I’m to the point where I don’t even want them here” for a photo-op, says Javier Villalobos, the mayor of McAllen, a Texas border town. The situation is so urgent that he wants them to “stay in Washington, sit down, figure out what to do and fix our border and our immigration problems.”

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