Title 42 Is Gone, But What Are Asylum Seekers Supposed to Do Now?

For the past two years, the White House has had one key question for the Department of Homeland Security, a former D.H.S. official recently told me: “What can you do to keep the border out of the news?” The answer, until last Thursday, was the continuance of Title 42, part of a decades-old public-health measure that the Trump Administration had activated to allow it to immediately expel hundreds of thousands of migrants at the southern border. In the past, by the strictures of U.S. law, authorities were required to give anyone who arrived the opportunity to seek asylum. Under Title 42, there were some exceptions, but essentially the government could just turn people away, with next to no questions asked. The pretext for implementing the policy, in March, 2020, had been COVID-19, but public-health experts in and outside the federal government were never convinced by the scientific rationale. The disease was already widespread in the U.S., and there was no evidence that migrants were spreading it. For the Trump Administration, which had been systematically dismantling the immigration system even before the pandemic, Title 42 was a way to halt the asylum process. For President Biden, who left the policy in place after taking office, it was a matter of avoiding the chaos of lifting it. After a period of prolonged ambivalence, including a few moments when the Biden Administration planned to end Title 42, then delayed doing so (first of its own accord, and later owing to a court injunction orchestrated by Republican attorneys general), May 11th was announced as the final deadline. Three years after the pandemic began, the President declared the public-health emergency over. Title 42 could no longer apply.

There was no obvious way to avoid an overwhelming sense of both opportunity and panic in the weeks leading up to that end date. Press coverage was intense and unceasing. Tens of thousands of migrants from around the world, who were already en route to the United States, began congregating in northern Mexico. American border cities—El Paso, Laredo, and Brownsville—declared states of emergency, as did New York, where state and local officials had already been dealing with large numbers of migrants being bused in from Texas and Arizona. (“The circumstances on the ground are expected to change significantly,” Kathy Hochul, New York’s governor, said last week.) Forty-eight hours before Title 42 expired, Border Patrol said that it had arrested around ten thousand people trying to enter the country in a single day, more than double the daily total from March. On May 10th, a former Venezuelan police officer, who had fled his home and was stuck in Ciudad Juárez, told the Associated Press, “I don’t know what’s going to happen tomorrow. . . . We don’t have any money left, we don’t have food, we don’t have a place to stay, the cartel is pursuing us.” He went on, “What are we going to do, wait until they kill us?”

What happened next, however, was a surprise to everyone: the Administration lifted Title 42 at midnight, last Thursday, but for the next several days the number of people trying to cross the border actually declined. Daily arrests hovered at around forty-four hundred. It’s far too early to interpret what—if anything—this might mean in the longer term. “We had a crush of people the week before Title 42 ended, and then less after,” a D.H.S. official told me. “My guess? People knew a change was going to happen. They rushed in before the change happened. It’s the devil you know.”

It’s hard to imagine an area of federal policymaking more vexed than immigration, generally, and asylum, specifically. The asylum system was designed more than forty years ago, for smaller numbers of people fleeing specific conditions of persecution. Yet, in the past decade, as Congress has failed to update the immigration system in other ways, asylum has become a catchall for anyone desperate to reach the U.S. That includes people fleeing the devastation of climate change, extreme poverty, violence, and political corruption. Technically, because the terms of the U.S. asylum statute are specific to certain kinds of persecution, a majority of these people would lose in immigration courts. But the system is so overloaded that there’s currently a backlog of more than two million cases. As a result, those seeking asylum are often admitted and given a future court date; on average, it takes about four years to close a single case. Anya McMurray, the president of Welcome.US, an influential nonprofit, told me, “People with traditionally strong asylum claims are at a tremendous disadvantage. They’re in an overly politicized, really long line. And other people who have legitimate reasons other than persecution for leaving their home countries are being put in a line that’s not right for them.”

The realities of mass migration are complex and in perpetual flux, while the national politics surrounding it are reductive in the extreme. Title 42 is a case in point. Since March, 2020, the government has used it to expel people more than 2.8 million times. That number is misleading, though, because many people who were expelled promptly tried to enter again. One difference between a typical deportation and an expulsion under Title 42 is that a deportation carried legal consequences: you were barred from reëntering the country for five years, and there were stiff penalties for trying. Under Title 42, people were simply shunted back into Mexico; moved from one U.S. border location to another so that they could more easily be shunted into Mexico; or, in some dramatic cases, flown straight to their home countries. But most were never formally processed, so they could attempt to cross a second time, or a third. Some people, depending on where and when they crossed, and with whom they were travelling, succeeded in staying. The government couldn’t expel everyone, and it tended to let families through; sixty-four per cent of single adults were sent back to Mexico, compared with twenty-two per cent of families. Randomness masqueraded as a policy of deterrence.

The existence of Title 42 also could not change the fact that more people are emigrating than ever before. For the past decade, an ongoing exodus from Central America has dominated the U.S. and Mexican borderlands. We now hear less about that situation simply because it’s been eclipsed by emergencies in other countries—such as Venezuela, Haiti, Nicaragua, and Cuba—caused by collapsing economies, increasing repression, and teetering regimes. In August, 2022, Venezuelans passed Guatemalans and Hondurans as the second-largest group (after Mexicans) arriving at the border. Five thousand people are estimated to be leaving Venezuela each day, totalling more than six million people since 2014, after a precipitous drop in oil prices, coupled with government mismanagement, sank the economy. In the fall of 2021, some fifteen thousand migrants, the vast majority of them Haitian, set up makeshift camps under the Del Rio Bridge between Mexico and Texas. The Darién Gap, a notoriously treacherous stretch of jungle between Colombia and Panama, which connects South and Central America, is becoming a regular thoroughfare for migrants travelling to the U.S., despite its dangers. According to the Times, about eleven thousand people crossed it each year between 2010 and 2020. In 2021, that number reached a hundred and thirty thousand; last year, it surpassed a hundred and fifty thousand. With migration to the U.S. border increasing, Title 42 was a daunting policy for the government to lose, since, in theory, it gave the Administration the power to rapidly clear the border. “Title 42 was like a drug,” Andrew Selee, the head of the Migration Policy Institute, told me. “The higher the numbers got, the harder it was to abandon. Everyone knew that it was neither fair nor a useful deterrent. But it’s hard to get off of it.”

Aside from its human costs, Title 42 had two major consequences. The first was political. Lee Gelernt, a veteran A.C.L.U. attorney who challenged the policy in federal court, told me, “Had the Biden Administration ended Title 42 immediately upon taking office, the Trump policies might have been viewed as an historical aberration. We’re now in a period when people don’t automatically assume that the United States will have an asylum system.” Joe Biden campaigned explicitly on the promise of reversing the damage done by the egregious immigration policies of the Trump era—the Muslim ban, family separation, an outright ban on asylum—and on reasserting American values. In his first months in office, he started to wind down a system called the Migrant Protection Protocols, which was responsible for stranding some seventy thousand migrants in northern Mexico, by forcing them to wait there for months on end in between asylum hearings in the U.S.

But, by the spring of 2021, he was beset by an inevitable increase in arrivals at the southern border, which detonated Republican attacks and made centrist Democrats uneasy. Inside the Biden Administration, the former D.H.S. official told me, “There was buyer’s remorse.” In fact, the list of Democrats who supported maintaining Title 42 is longer and more ideologically diverse than might be expected, ranging from centrists such as Kyrsten Sinema (“the Biden Administration failed to plan ahead”) to progressives such as Sherrod Brown (“We need two more years to get this right”).

The other, murkier effect of Title 42 was that it kept the Biden Administration from actively pursuing proposals for reforming the asylum system. Now that Title 42 is off the table, ideas are beginning to emerge. The Administration’s main gambit is to bracket off asylum for a bit longer and open up other avenues for migrants to reach the U.S. “We are directing people to legal pathways,” an Administration official told me. “This is how we wanted it to happen.” The linchpin of the approach is a tool called parole—a temporary status—to allow the government to expand the options so that people don’t feel they have to take their chances at the border. One program, which began in January, extends parole to thirty thousand migrants each month from Venezuela, Nicaragua, Cuba, and Haiti. Earlier this year, the Administration managed to reduce the number of migrants arriving at the border from these four countries by more than ninety per cent; it did so by offering parole to several thousand who applied, while using Title 42 to deport the rest. Now, for deportations, instead of Title 42, D.H.S. will use a practice called expedited removal, which speeds up the removal process. “Our hypothesis,” the Administration official told me, was that the government could “change migrants’ incentives” in coming to the U.S.

Under this system, migrants are being offered not asylum but a two-year term to live and work in this country. After that, it’s unclear what will happen. A Democratic President would likely renew that provisional status; a Republican President would likely end it. Another program, known as family-reunification sponsorship, would open up parole for people with family members living in the U.S. This is tailored to migrants from a different set of countries: Guatemala, El Salvador, Honduras, and Colombia. Family visas currently exist, but there are very long delays in the process. According to the Administration, those who are waiting could apply for parole to enter the country in the meantime.

Leave a Reply

Your email address will not be published. Required fields are marked *