Lone Candle

“U.S. Customs and Border Protection has been using the policy implemented at the onset of the pandemic to immediately expel migrants apprehended at the border, while progressives, pro-immigration activists and institutions such as the United Nations and Doctors Without Borders have rebuked the policy for shutting the door on thousands of desperate families and stranding them in unsafe camps with limited options.

Almost everyone in this debate recognizes that the necessity of Title 42 to prevent Covid transmission is a pretense. Public health experts have long contended that the rule is scientifically baseless. In fact, officials in the previous administration explored enacting the policy before the pandemic by using the flu and measles as justification. But the benefits of repealing or leaving in place Title 42 are not as straightforward as either border security or human rights advocates claim, which both sides would be wise to understand as they argue the political merits of the administration’s next moves. If approached smartly, rescinding Title 42 could lead to a more secure and prosperous America rather than the chaos that some warn of.

Proponents of keeping Title 42 in place assert that the quick expulsions are needed because they give officials greater ability to intercept and turn back more migrants. A recent report from the Migration Policy Institute notes that Title 42 expulsions can take as little as 15 minutes, while removals under standard immigration law, which require more procedures and paperwork, can often take an hour and half.

But the procedural steps that Title 42 bypasses are critical for the U.S.’s ability to target smuggling networks and discourage repeat crossings. This is why Border Patrol agents warned in a 2021 report from the Government Accountability Office that Title 42 “negatively affected enforcement” because the expulsions gave them no time to collect intelligence from migrants concerning nearby smugglers and other illegal activity.

The quick expulsions under Title 42 also cut corners in ways that prevent authorities from deterring migrants as they attempt to reenter the country. Before the pandemic, officials were able to use criminal prosecution, fines and other penalties to deter people from repeatedly crossing the border. This is because apprehended migrants were being processed under standard immigration law. Title 42, however, is a provision that exists under health law, which means that authorities are incapable of issuing penalties for reentry against migrants who are expelled under this provision. Border Patrol officials have stated that because of Title 42, migrants now try to cross multiple times a day. Since the pandemic expulsions began, repeat crossings jumped from 7 percent in 2019 to 26 percent in 2020. It’s not unheard of for people to make as many as 30 attempts at crossing in just the span of a few weeks.”

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“But even when considering all the security liabilities that Title 42 is responsible for, proponents of the policy are correct in saying that Biden needs a plan in place as he works to rescind the program. This plan must include interagency coordination that rapidly expands capacity as more families arrive to claim asylum. The administration must also work with humanitarian organizations to ensure that they’re in the best position possible to monitor and shelter migrants — and that their capacity is being fully utilized.

At the same time, advocates for ending Title 42 as well as the Biden administration must acknowledge that the overwhelming majority of people who are being expelled under the policy haven’t been families seeking asylum, but rather single adults fleeing extreme economic deprivation and in search of work. In February alone, more than 90 percent of Title 42 expulsions were single adults — the vast majority from Mexico. Mexican President Andrés Manuel López Obrador has acknowledged this reality and urged Biden several times last year to work with him to expand guest worker programs for the U.S., Mexico and the Northern Triangle. Though the Biden Administration recently suggested a willingness to do so, it has not yet provided any details.

It’s critical that Biden’s post-Title 42 strategy includes increased access to guest worker programs. Extensive research shows that when expanded legal channels are paired with border security measures, illegal immigration rapidly declines. This was exactly what happened in the mid-1950s when the U.S. government expanded their agricultural worker program for Mexicans, which caused illegal immigration to collapse by 95 percent in just 5 years. Border Patrol saw the success of the agricultural program and warned that restricting it would cause “a large increase in the number of illegal alien entrants into the United States.” But in 1960, the Department of Labor did just that, causing employer use of the program to drop by 30 percent in just one year while Mexican apprehensions increased by 55 percent. When the program was eliminated altogether, apprehensions continued to grow, reaching nearly 1 million in 1976.”

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“With a surge at the border and a shortage of workers, maintaining Title 42 has done nothing to solve either crisis — aside from creating more jobs for human smugglers. Though the Biden administration is right to rescind Title 42, chaos at the border will continue to drive headlines and the U.S. economy will limp forward until Biden prioritizes expanding legal channels for those in pursuit of a better life.”