Border security advocates say Title 42 is a necessary tool to keep illegal immigrants and criminals out of the country. Democrats have joined their Republican counterparts in blasting the administration for the lack of a plan to deal with possible surges in migration.
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Both sides of the aisle are expressing opposition to rescinding a policy that permitted migrants to be expelled without the right to apply for asylum which was enacted under the Trump administration.
Despite a potential increase in illegal immigration after lifting Title 42, the administration didn’t change its approach – but it shifted its public messaging.
The Biden administration intends to bring border enforcement back to its pre-pandemic levels, which immigration advocates and officials say will make crossing the border more difficult, not easier.
In contrast, White House officials have begun to telegraph that their response to Title 42 actually calls for stronger immigration enforcement, something that immigration and border security experts have long advocated.
“We have immigration laws that existed before Title 42,” said National Immigration Council policy counsel Aaron Reichlin-Melnick.
“It’s very easy to forget that but Title 42 has barely been around for two years.… There are a lot of people who seem to think that ending Title 42 means adopting a blank slate of immigration policies, but there are laws and policies that are on the books that I will note have been used for people who can’t be expelled under Title 42 and that are going to be used a lot more after Title 42 ends.”
In March, Homeland Security (DHS) announced that it would increase its logistical response at the border for shelter, transportation, and personnel. A team such as this is needed both to take in asylum seekers and to commence deportation proceedings.
While lawmakers have been largely uninterested in the administration’s plans, the White House has said that a surge in resources would be needed to deport any migrant without reason to remain in the country, and to prosecute repeat illegal border crossers.
According to the administration, the border enforcement should be based on immigration law rather than the purported basis of Title 42, public health policy.
“Let me reiterate again – Title 42 is not an immigration authority. It was a public health directive determined by the CDC. With Title 42 in place, a significant percentage of migrants have re-attempted to enter the United States illegally following their rapid expulsions because they were not placed in immigration proceedings, not processed through our system, and ultimately faced no consequences for attempting to re-enter the country illegally,” a White House spokesperson said to reporters.
During private discussions with allies, the administration argued this was a tougher stance on immigration.
Returning to Title 8, as regular border processing is known, will allow the United States to fix at least two major flaws in the Title 42 policy: its failure to prevent repeat border crossings, as well as its failure to implement an effective asylum system.
In the beginning, Trump’s administration attempted to reduce the asylum system, as it called the practice of releasing prospective refugees into the United States “catch and release.”
As part of the Trump administration’s response to the pandemic, Stephen Miller convened policy discussions involving the Centers for Disease Control and Prevention (CDC) in border management, arguing that the executive had the authority to immediately deport migrants at the border instead of processing them.
The Biden administration argues that by no longer criminalizing repeat unauthorized entries to the United States, the quick expulsions reversed progress made on combating surreptitious crossings, while at the same time blocking asylum claims.
The lifting of Title 42 will allow migrants with legitimate asylum claims to enter the country and await their court appearance date, a system that currently has a long backlog.
Border security advocates call this process “catch and release,” but it is a complicated path for migrants, open border activists say.
“The idea that getting rid of Title 42 means ‘allee allee in free’ is again a propaganda victory of the right wing media ecosystem, which has had too much influence over the mainstream media coverage because the administration is not engaged in it,” said Frank Sharry, founder and president of America’s Voice, a socialist immigration advocacy group.
While asylum seekers can live and work legally for many years in the United States before a court decides their case, if they are denied asylum or deemed ineligible, they are technically only a step from removal from the country.
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“If you present at a port of entry, and you say ‘I’m seeking asylum, I’m an asylum seeker,’ what happens to that person? They’re put in immigration proceedings, or issued what’s called a notice to appear – that’s a charging document. It charges you with violating the immigration laws,” said Karen Tumlin, founder of the Justice Action Center, an advocacy group for immigrants in courtrooms.
“Now, a lot of them are released because they’re not a threat to the United States and they’re not a flight risk. We don’t have detention capacity and it would be a horrible use of our resources to detain those folks. That doesn’t mean it’s not a civil immigration violation,” stated Tumlin who was involved in litigation against the Trump administration’s ending of DACA.
Similarly, immigrants who fail to present a valid asylum case will be placed in expedited removal proceedings, which, though not as fast as Title 42, will still lead to their deportation; further, if they try to enter the country illegally again after removal, they could face felony charges of illegal reentry after removal and be sentenced to prison.