The drawn-out saga of Title 42, the set of emergency powers that allows border officials to quickly turn away migrants, has been chaotic at the U.S.-Mexico border. In Washington, it hasn't unfolded much better.
The Supreme Court is weighing whether to keep the powers in place following months of legal battles brought on by Republican-led states after President Joe Biden's administration moved to end the Trump-era policy, which was set to lapse this week until the court agreed to take it up.
The administration has yet to lay out any systemic changes to manage an expected surge of migrants if the restrictions end. And a bipartisan immigration bill in Congress has been buried just as Republicans are set to take control of the House.
In short, America is right back where it has been. A divided nation is unable to agree on what a longer-term fix to the immigration system should look like. Basic questions — for example, should more immigrants be allowed in, or fewer? — are unanswered. Meantime the asylum system continues to strain under increasing numbers of migrants.
The Biden administration has been reluctant to take hardline measures that would resemble those of his predecessor. That's resulted in a barrage of criticism from Republicans who are using Title 42 to hammer the president as ineffective on border security. The rules were introduced as an emergency health measure to prevent the spread of COVID-19.
“The Democrats have lost the messaging war on this," said Charles Foster, a longtime immigration attorney in Texas who served as an immigration policy adviser to Republican George W. Bush but now considers himself independent. "The tragedy is, Democrats more than anyone should focus on this issue, because unless and until it can be fixed, and the perception changes, we’ll get nothing ever through Congress."
Anyone who comes to the U.S. has the right to ask for asylum, but laws are narrow on who actually gets it. Under Biden, migrants arriving at the border are often let into the country and allowed to work while their cases progress. That process takes years because of a 2-million-case backlog in the immigration court system that was exacerbated by Trump-era rules.
Title 42 allows border officials to deny people the right to seek asylum, and they have done so 2.5 million times since March 2020. The emergency health authority has been applied disproportionately to those from countries that Mexico agreed to take back: Guatemala, Honduras, El Salvador and more recently Venezuela, in addition to Mexico.
“There is not going to be a good moment, politically speaking,” to end the restrictions, said Jorge Loweree of the American Immigration Council. The administration should have been preparing all along to create a better system for asylum seekers," Loweree said.
“It has allowed the other side to weaponize this issue. And the longer it remains in place, the longer the weapon will remain effective.”
The authority was first invoked at the height of the COVID-19 pandemic by President Donald Trump, whose immigration policies were aimed at keeping out as many migrants as possible. He also drastically reduced the number of refugees allowed into the country, added restrictions to the asylum process that clogged the system and kept migrants in detention, and reduced legal immigration pathways.
Biden has been working to expand legal immigration and has undone some of the most restrictive Trump policies. But the administration kept the policy in place until this spring, and even expanded its use after announcing it would end.
Republican say there will be will be chaos if it's lifted. But even with Title 42 in place, border officials have been encountering more migrants than ever before. In the budget year that ended Sept. 30, migrants were stopped 2.38 million times, up 37% from 1.73 million times the year before.
“I don’t know why it’s taking them so long to get serious about deterrence,” Republican Sen. Shelley Moore Capito of West Virginia said of the Biden administration. Capito is an incoming member of the Senate Republican leadership and the top GOP senator on the committee that oversees money for Homeland Security, the federal agency that manages border security.
Border officials have braced for an expected increase, and migrants who have arrived are unsure of how asylum processes will work when the policy ends. Homeland Security officials have reported faster processing for migrants in custody on the border, more temporary detention tents, staffing increases and more criminal prosecutions of smugglers.
They say progress has been made on a plan announced in April but large-scale changes are needed. Meanwhile, the Senate's Republican leadership killed a bipartisan immigration bill that would have addressed some of these issues.
The split isn't just inside Congress. One in 3 U.S. adults believes an effort is underway to replace native-born Americans with immigrants for electoral gains, according to an AP-NORC survey.
Biden and his aides have said they are working to divert migrants coming out of Central America and helping provide aid to poorer nations that are bleeding people headed for the U.S. But the president is limited without action from Congress.
White House press secretary Karine Jean-Pierre said the administration is surging assistance to the border and will continue to do so. But “the removal of Title 42 does not mean the border is open,” she said. "Anyone who suggests otherwise is simply doing the work of these smugglers who again are spreading misinformation, which is very dangerous.”
A year-long appropriations bill passed the Senate on Thursday that would give the Border Patrol 17% more money, as well as 13% more for the Justice Department to develop an electronic case management system for immigration courts.
But Citizenship and Immigration Services, central in the asylum process, only got one third of what Biden had proposed to speed up the system.
Democrats, for their part, say they want policies that reflect America's reputation as a haven for those fleeing persecution. But they can’t agree on what that looks like.
Sen. Dick Durbin, D-Ill., has been working on the issue for 20 years. This week, he stood on the Senate floor, sounding dejected as he talked about how Congress couldn't push through reform.
“It is a humanitarian and security nightmare that is only getting worse,” he said. “We're being flooded at the border by people who want to be in the United States, safely in the United States.”
Why, he asked, can't Washington figure out a better way?
