U.S. border policy is stuck in the past. The expiration of Title 42 gives the U.S. government another chance to effectively manage migration and border security, but it will be successful only if it addresses the reality of Western Hemisphere migration.
Our deterrence policies and enforcement infrastructure were built decades ago for single adult men seeking employment. Since 2013, vulnerable populations — unaccompanied children, families and vulnerable adults seeking refuge — have dominated border arrivals. Successive administrations, no matter how draconian or punitive their chosen policies, have been unable to prevent migrants from arriving at the border.
The last three years have seen a firm commitment to Title 42, public health guidance implemented in the early months of the COVID-19 pandemic that expelled most border crossers without granting them an asylum interview. This policy was an abject failure at preventing the spread of COVID-19. The side effect was that it was absolutely terrible for border enforcement.
Without any real legal penalties for unauthorized crossing, Title 42 incentivized migrants to try again and again to get across the border and drove border encounter numbers to very high levels. The U.S. government needs a nimble, flexible approach that can adapt to the constantly changing demographics of migrants at the border.
The Biden administration has released the contours of a regional plan to address migration that attempts to prevent many migrants from requesting asylum at the border through a combination of deterrence initiatives and alternative legal pathways.
The deterrence initiatives presume migrants are ineligible for asylum in the United States if they enter without documentation and have traveled through another country where they could ask for protection. These restrictions on asylum concern advocates, who rightfully are worried about the impact on vulnerable people who need protection in the U.S. rather than elsewhere in the region.
The use of alternative legal pathways has shown some success. The family sponsorship program for Venezuela significantly decreased encounters of Venezuelans since the program launched. Additional programs for Nicaraguans, Haitians and Cubans will hopefully be just as effective. The announcement of increased refugee resettlement, regional processing centers and agreements to share resettlement across other nations in the region is promising.
U.S. Customs and Border Protection’s CBP One app, which allows migrants to request asylum appointments, is a good idea but poorly executed, with too few appointments and design flaws that hinder its usefulness.
The success of all these efforts will depend greatly on swift and effective implementation. The administration’s plan isn’t perfect, but it has some strong components. The next few months will show whether these new policies can effectively manage migration.
But the missing piece in all of this is, of course, Congress. Even the best border policies won’t be as effective as they could be without an equally robust legal immigration system, which only Congress can provide.
For many migrants, asylum is the only legal pathway to the U.S., creating huge backlogs in our asylum system. Many in Congress are focused on the idea of reforming our asylum system, but continuing to try to “fix” asylum won’t stop people from coming to the border. The U.S. certainly needs additional immigration judges. We probably need to streamline asylum processing. But changing the rules on who deserves protection in the U.S. won’t solve the problem.
Lawmakers from both parties championed Title 42 and urged the Biden administration to keep it in place, despite its ineffectiveness. There is even bipartisan legislation that, if passed, would reinstitute a Title 42-like border enforcement mechanism but without the veneer of keeping Americans healthy.
This is disappointing. A government serious about managing its border would not maintain a policy that contributed to dysfunction like Title 42 did.
The return to regular immigration processing has been a bit boring so far. The five-year bars to reentry for unlawful crossers are likely encouraging some to wait for their chance to gain access at a port of entry. But given the scale of the refugee crisis in our region, returning to the policies designed for migration patterns from 20 years ago won’t work for long.
The migrants leaving home for a better life in the U.S. need our laws to provide them another legal way to enter. Permanent, sustainable change to the U.S. immigration system can be done only with legislation.
If Congress is serious about the border, it has the power to legislate good changes. I remain hopeful it will.
ABOUT THE WRITER
Laura Collins is director of the George W. Bush Institute-SMU Economic Growth Initiative in Dallas.