Nearly every headline about the expected surge in migrants mentions something called Title 42 — and with good reason. On May 11, this U.S. law expires and won’t be available to stop mass illegal entry on our southern border.
Think of Title 42, which covers public health, as a bouncer keeping someone out of a bar. Easy, no paperwork. Then there’s Title 8, which deals with immigration. Think of it as how you evict terrible tenants from a rental property: lawyers, lots of paperwork, and very slow, even if you usually win in the end.
In March 2020, the CDC enacted a public health provision under Title 42 to block foreigners who have been in “Coronavirus Impacted Areas.” Simply put, U.S. border authorities (Customs and Border Protection at the ports of entry, and Border Patrol in between) blocked nearly everyone attempting to enter and sent them back to Mexico.
Because Title 42 allows immediate expulsion, intending migrants weren’t able to claim a “credible fear” of persecution, the first step to claiming asylum.
Most of those arriving illegally in the U.S. don’t get asylum, either because they never apply, or they don’t finish the process, or they are eventually judged ineligible. Most are coming for work and a better life, but to qualify for asylum they must be “refugees” under our law.
COVID froze world travel in 2020, but in 2021 DHS expelled 1,071,075 migrants under Title 42. In fiscal 2022, they bounced 1,103,966. That means that 48% of people attempting to illegally enter the U.S. via the southwest border were quickly and easily returned to Mexico that year.
The Biden administration has whittled away at Title 42 with exceptions; for example they don’t apply it to family groups, or people from Venezuela, Cuba and Nicaragua. Because of all the exceptions, almost 90% of migrants expelled under Title 42 lately have been single adults from Mexico and Central America. Still, since last October, that’s already 444,146 people.
Under U.S. law, anyone arriving at the border illegally is supposed to be arrested and detained until they’ve had their due immigration process. That’s fair, because most people detained throughout their entire proceedings are deported, whereas those released are not. Even with the “expedited removal” process Congress introduced in 1996, a migrant can still claim “credible fear” of persecution to get in and then claim asylum later.
There are combined backlogs of 1.5 million asylum cases in our immigration system, with thousands more added monthly. Some newly released migrants won’t get their first appointment for a removal hearing until 2033!
The Biden administration believes that almost every person attempting to cross our border should have the right to enter the U.S. and make an asylum claim, no matter how unfounded. Other than those expelled under Title 42, they mostly “catch and release” arrested migrants after making them promise to show up for an immigration hearing. Sometimes, they even keep track of them.
On May 11, America will fire the Title 42 bouncer. All we’re left then is the cumbersome Title 8 bailiff. Predictions are that the current, unsustainable daily encounters at the border will double or more, to 10,000 and more. Thousands of migrants are waiting in Mexico and all the way down to the Darien Gap in Panama to swarm our open borders.
The Biden administration isn’t ready for this. Their philosophy — that everyone on Earth has the right to claim asylum here — simply isn’t realistic, given the state of the world.
There are solutions they could try. One would be to pass a law similar to Title 42 that allows DHS to expel all illegal entrants when numbers reach a certain level, or until the asylum backlog can be reduced to the point where arrivals can be detained throughout their proceedings.
Another would be to re-instate the Migrant Protection Protocols so that asylum seekers wouldn’t automatically get the right to enter the U.S. and stay indefinitely while they await their hearings.
Instead, the administration is diverting staff to the border for processing, in the unrealistic hope that they can handle the unlimited supply of economic migrants drawn by their policies.
Congress is stepping up. The House of Representatives is about to consider the Secure the Border Act, which would help get things under control.
Whatever we do, we need to act quickly. The time to restore order to the mounting chaos at our border is running out.
(A former career foreign service officer, Simon Hankinson is a senior research fellow in The Heritage Foundation’s Davis Institute for National Security and Foreign Policy.)
