9 questions about Biden’s border policy, answered

The end of the controversial Trump-era immigration policy Title 42 has reignited concerns about an impending crisis at the southern border. So far, the Biden administration’s plans to mitigate a sudden influx of migrants appear to be working, with arrivals at or below average levels in recent months. But arrivals aren’t the only thing at issue: there are still tens of thousands of migrants awaiting processing in overcrowded facilities — and thousands more in legal limbo waiting to enter the US in Mexico. The so-called Title 42 policy — first implemented by Trump under the dubious rationale of curbing the spread of Covid-19, and maintained for more than two years by President Joe Biden — allowed the US to essentially shut the door on most migrants arriving at the southern border. Migrants have been quickly expelled more than 2.8 million times under the policy since 2020, with many being expelled multiple times after attempting to cross the border again. Title 42 ended Thursday night, along with the expiration of the national emergency related to the pandemic. The Biden administration had been planning for that moment for more than a year, introducing new legal pathways for migrants, devising a scheme under which it aimed to quickly and safely process them, and surging resources and personnel to the southern border to make that happen. Though some were skeptical that the administration had done enough to prepare, there hasn’t been a surge of migrants at the border in the days since Title 42 expired. Nevertheless, officials continue to anticipate a spike in border crossings, while Republicans and some moderate Democrats have warned of the disastrous potential consequences for border states and communities, arguing that Title 42 or something like it should still be in place. Meanwhile, progressives and immigrant advocates have raised the alarm on conditions for migrants in US custody and for those who are still waiting for a chance to enter the US, either in Mexico or in their home countries. And some have sued the Biden administration over its changes to asylum policy designed to deter migrants from trying to cross the border without authorization. FEATURED VIDEOS FROM VOX Why China is losing the microchip war And how its escalated the US-China cold war. Here are your biggest questions about the end of Title 42 and what’s happening at the southern border, answered: What is happening at the border, and how does it compare to the past? Despite projections that the end of Title 42 would draw a massive influx of migrants at the southern border, border crossings have actually decreased significantly in the days since the policy expired. Department of Homeland Security Secretary Alejandro Mayorkas told CNN Sunday that his agency had seen a “50 percent drop in the number of encounters versus what we were experiencing earlier in the week, before Title 42 ended at midnight on Thursday.” Border Patrol agents encountered about 6,300 migrants on Friday and 4,200 on Saturday. That’s down from daily highs of over 10,000 encounters in the days before the end of Title 42, but on par with an average of about 6,000 daily in March and still historically high compared to the last two decades. “It is still early. We are in day three. But we have been planning for this transition for months and months,” Mayorkas said. The administration has credited its efforts to communicate to migrants that they will face harsh penalties for trying to cross the border without authorization. “Do not believe the lies of smugglers. The border is not open,” Mayorkas said in a statement Friday. What is Title 42? Title 42 is a previously little-known section of US health law that allows the government to temporarily block noncitizens from entering the US “when doing so is required in the interest of public health.” When the Trump administration invoked Title 42 in March 2020 at the outset of the pandemic, White House officials argued that it had been recommended by public health officials to prevent the spread of Covid-19 among migrants in crowded Border Patrol stations. But public health officials weren’t the ones pushing the policy. In fact, there was notable outcry from public health experts about its wisdom and potential effectiveness. Instead, the effort was led by Stephen Miller, a former senior adviser to Trump and the chief architect of his nativist immigration policy, which focused on reducing overall immigration levels to the US, at times by deliberately cruel means. Even before the pandemic, Miller had been looking for opportunities to use Title 42 to expel migrants, including when there was a mumps outbreak in immigration detention and flu spread in Border Patrol stations in 2019. The policy effectively shut out migrants arriving at the southern border from accessing asylum and other humanitarian protections in the US, with some limited exceptions. Many were returned to Mexico within a matter of hours. RELATED The seismic consequences of ending Title 42 Biden refused to roll back the policy for more than a year as a means of managing the border. When the administration finally moved to end Title 42 last May, Republican attorneys general challenged the decision, arguing that Biden’s decision had been rushed and would potentially trigger a surge of migrant crossings in their border states. Courts delayed the policy’s expiration, but now that the national emergency related to Covid-19 has ended, so too has any public health rationale for keeping Title 42 in place. What exactly is asylum? How is that different from immigration? How does the asylum process work? Migrants have the right under US law and international treaties to seek asylum, which is a form of legal protection offered to individuals who fear persecution or harm in their home countries. Unlike other forms of legal immigration, where individuals have to apply to enter the US while abroad, asylum seekers do not need prior authorization to enter the country. Once encountered by border agents, asylum seekers are screened by US asylum officers to determine whether they will likely meet the criteria to be granted asylum. That involves proving that they have “credible fear” of persecution in their home countries on account of their race, religion, nationality, political opinions, or membership in a “particular social group,” such as a tribe or ethnic group. If they are found unlikely to be able to prove they are in danger of persecution, they’ll be swiftly removed from the US, unless they decide to appeal the decision before an immigration judge. But if they are found likely to be able to prove credible fear, an immigration judge will make a final determination as to whether they will be granted asylum. It can take a long time, however, to get a hearing before an immigration judge — an average of more than two years — given the current backlog of over 2 million cases in the immigration courts. And despite the complexity of the proceedings and the fact that asylum seekers have a much higher rate of success when they have an attorney, they are not generally provided with representation. While they’re waiting for a hearing, some are detained by US Immigration and Customs Enforcement, but increasingly, many are released and enrolled in electronic monitoring programs to ensure that they show up for their date in court. Once they are granted asylum, they can obtain social services through refugee resettlement agencies and apply for a green card one year later. What happens to a person who is caught crossing the border without authorization? Now that Title 42 has ended, migrants apprehended at the border are subject to what’s called “Title 8” processing, which, as the Biden administration has emphasized, carries more severe long-term consequences for those found ineligible for legal protections, including asylum. Under Title 42, migrants who were turned away were not penalized for crossing the border without authorization, and in many cases attempted to reenter multiple times. But under Title 8, migrants found ineligible for legal protections are barred from reentering the country for at least five years and can be quickly deported through a process called “expedited removal” without ever appearing before an immigration judge. And if they do try to reenter, they can face criminal prosecution. Biden administration officials are hoping that the new system serves as deterrence to migrants thinking about crossing without authorization and instead encourages them to pursue new legal pathways to the US. Is there actually a crisis at the border? Republicans have been warning of a border crisis for months in the lead-up to Title 42’s end. In a CNN town hall Wednesday night, Trump said that Thursday, the day Title 42 ended, was “going to be a day of infamy” and accused Democrats of “destroying our country” by letting it expire. Some members of the GOP have also called for the impeachment of Secretary Mayorkas, and the Republican-controlled House launched an investigation of Biden’s border policies. But the number of crossings in the last few days suggests that a border crisis, at least by Republicans’ definition, has not yet materialized. There’s still a possibility that there could be a future spike in crossings. Border officials said in a federal court filing Friday that they were preparing for daily crossings to reach upward of 14,000. For now, the border crisis is primarily a humanitarian one. Border officials said in the Friday court filing that there are more than 20,000 migrants in their custody and several of their facilities remain over capacity, raising safety concerns. The administration wants to be able to release some of those migrants into the US without setting a date for them to appear in deportation proceedings, to relieve some of the pressure on those facilities. But it has been prevented from doing so by a court ruling that it intends to appeal.​​ RELATED Why Biden is deploying more troops to the southern border Meanwhile, in Mexico, tens of thousands of migrants — possibly as many as 155,000 — are waiting for a chance to enter the US. They are concentrated in Ciudad Juárez, Reynosa, and Matamoros, cities that border Texas. Since Title 42 lifted, Mexico has stopped granting new transit permits that allow asylum seekers to legally cross through the country, and it has also temporarily stopped offering services at dozens of its migrant shelters. That could leave many homeless. Many of the migrants waiting in Mexico have been trying to get an appointment to legally enter the US through the CBP One smartphone app operated by US immigration authorities. But only 1,000 appointments are offered on a given day, and not all migrants have the ability to access the app; some don’t have smartphones, while others do not speak the languages offered. And given the dangers that migrants face in Mexico, including escalating gang violence, they may not be able to safely wait for an appointment. Where are migrants going in the US? New York, Washington, DC, Miami, and Houston have historically been top destinations for migrants settling in the US, but many have also recently settled in the Midwest and other locations in the Southeast. That suggests that migrants are not primarily driven by immigrant-friendly policies, but rather by the desire to reunite with family. Some states, including Texas, Florida, and Arizona, have implemented programs to help migrants get to their final destination. While immigrant advocates have long fought for such policies, they have been pursued by Republican state leadership largely as a means to score political points against the Biden administration and Democratic cities, testing their commitment to “sanctuary” policies for immigrants and drawing attention to what they describe as a crisis at the southern border that has gone ignored. They claim that they only transport migrants with their express consent. But Florida Republican Gov. Ron DeSantis has been sued for sending migrants to Martha’s Vineyard. The lawsuit claims that he and other Florida officials schemed to target migrants on the streets outside a migrant shelter in San Antonio, Texas, offering false promises of employment, housing, educational opportunities, and other assistance if they boarded flights to other states. While Republicans initiated the transportation programs, some Democrats have followed suit, including Arizona Gov. Katie Hobbs and Colorado Gov. Jared Polis. Polis, however, halted that program soon after it was announced at the request of multiple Democratic mayors. How are local communities near the border being affected? Border communities have been bracing for the end of Title 42 for months. Several south Texas counties, including Cameron and Hidalgo, issued disaster declarations before the policy expired in order to surge state and federal resources to the border. Though there hasn’t been a massive influx yet, mayors of border cities are still preparing for that possibility. El Paso Mayor Oscar Leeser told CNN Sunday that “we still need to prepare for the unknown because we don’t know what’s going to happen next week and continue to happen day in and day out.” But even when Title 42 was in place, border communities bore the brunt of the burden of absorbing high numbers of incoming migrants, putting a strain on their infrastructure. The mayor of Laredo, Texas, Victor Treviño, told CNN last week that he worried about being able to keep migrants safe because the city does not have a permanent pediatric intensive care unit. He called on the federal government to send FEMA and the National Guard to provide housing, food, transportation, and health care at the very least. The federal government is already providing more than $332 million to 35 local governments and service organizations on the border through its Emergency Food and Shelter Program to help them provide for arriving migrants, but many groups and local government say that’s not enough. What’s prompting migrants to come to the US? In recent years, Mexico and Central America’s Northern Triangle — which includes Guatemala, Honduras, and El Salvador — has driven most of the unauthorized crossings at the southern border. Crime, violence, and lack of economic opportunity have led to millions fleeing the region since 2014. But migration trends have begun to shift, with border officials seeing increasing numbers of arrivals from Haiti, Ecuador, Venezuela, and Colombia in the last year. All are countries experiencing various political, economic and national security crises. Haiti’s president was assassinated in 2021, leaving a power vacuum ever since, and gang violence has proliferated in the absence of political leadership. The country has also been wracked by several major natural disasters in recent years from which it never recovered. Murder rates have reached record levels in Ecuador due to conflicts among criminal groups vying for control of the drug trade, mostly that of cocaine, despite it being among the safer countries in Latin America just a few years ago. A global decline in oil prices left the once petrol-rich Venezuela in economic freefall, and dictator Nicolas Maduro has maintained an iron grip on the government. Colombia has struggled to absorb refugees from neighboring Venezuela and remains in the throes of decades-long armed conflict among guerilla groups and paramilitaries, which have resulted in mass displacement. That means that while the Northern Triangle countries and Mexico still remain the top countries migrants come from, there are now increasingly more asylum seekers arriving from other parts of Latin America and the Caribbean, putting even more pressure on the southern border. What is the government doing to address the number of migrants at the border? Biden has expanded lawful pathways for migrants to come to the US with the aim of reducing pressure on the southern border. The Biden administration has already created a program under which the US-based family members of migrants from Venezuela, Haiti, Cuba, and Nicaragua — who have arrived in increasingly large numbers at the southern border in the last year — can apply to bring them to the US legally. The administration has outlined a plan that involves opening new processing centers in Central and South America where migrants can apply to come to the US, Spain, or Canada legally. It’s unclear, however, when those processing centers will open. It has also pledged to accept 100,000 people from El Salvador, Guatemala, and Honduras under another family reunification program. Some of those programs have proved successful. But they’re still not enough on their own to meet the current need for legal migration channels, after years in which Trump administration policies created pent-up demand, said Doug Rivlin, a spokesperson for the immigrant advocacy group America’s Voice. “That’s not enough. And it can’t replace the need to have a functioning asylum system at the border,” he said. To that end, the administration is also planning to speed up processing on the border, quickly identifying individuals who have valid asylum claims and turning away those who don’t. Biden is surging personnel to the border to make all of that happen, including 1,400 DHS staffers, 1,000 asylum officers, and an additional 1,500 active-duty troops on top of the 2,500 military personnel already at the border, Mayorkas said in a press conference last week. DHS has assured that the troops would be “performing non-law enforcement duties” — including “detection and monitoring, data entry, and warehouse support” — and would not “interact with migrants.” “All of these individuals will allow our law enforcement officers to stay in the field and focus on their critical mission,” Mayorkas said. A new rule — which went into effect Thursday and is the subject of a lawsuit from immigrant advocates — also restricts access to asylum in the US for individuals who cross through another country without first applying for protections there. The Biden administration is also establishing a new program that will allow it to track migrant families released into the US and subject them to fast-tracked deportation proceedings, including by requiring them to abide by a curfew and stay in one of four cities. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.