By Barbara Franz
Democrats will suffer in next year’s midterms if President Biden sticks with a Trump-era immigration rule, Title 42.
The Border Patrol recorded 1.7 million migrant apprehensions at the southern border over the past year — the highest number ever, eclipsing the record set in 2000.
Barbara Franz
Observers have argued this is the result of the Biden administration having no strategy for dealing with migration.
Immigration policy is deferred to the White House National Security Council, “which can’t see past low polls on immigration and [is] terrified [by] their own shadow.”
It seems to me the White House does have a plan, a convoluted, two-pronged strategy: Quietly preventing an influx of migrants at the southern border with as little media attention as possible, while domestically expanding protection for migrants already residing in the U.S.
On the one hand, the Biden administration seeks to appease the progressive wing of the Democratic party by dismantling some draconian Trump-era policies, mostly addressing domestic issues.
On the other hand, Biden wants to mollify voters who support Trump’s immigration policies, by continuing the most restrictive border policies. It’s a schizophrenic attempt to serve two masters.
This may reflect a lack of consensus within the administration. However, it also could be an ill-directed effort to prevent Republicans from inflicting maximum political damage in 2022.
Instead, it may allow Republicans to inflict this damage.
In addition to exacerbating the humanitarian crisis at the border and in immigration jails, this policy will fail to conciliate progressives on the left or immigration-restrictionists on the right. Instead, Biden will drive alienated voters to the Republican side next year.
The administration has undone several Trump initiatives, notably ending the so-called Muslim ban, which barred entry of people from several majority-Muslim countries.
Biden also largely has ceased the detention of families, and has promoted reuniting many parents and children separated under Trump. In addition, the administration has been backing a congressional effort to create a pathway to citizenship for millions of immigrants living in the U.S., and it supports efforts to expand work permits for immigrants who are crime victims.
But the White House also has continued using Title 42 of the 1944 Public Health and Service Act to limit the influx of migrants and asylum seekers.
The previous administration used this obscure provision to practically suspend the fundamental right to seek asylum in the U.S. The act justifies the use of the COVID-19 pandemic as a reason to deny due process to asylum seekers from El Salvador, Guatemala, Haiti and other countries where human rights abuses and violence are endemic.
Biden’s current implementation of Title 42 continues to violate this country’s legal obligation not to expel or return individuals who fear persecution, death, or torture. Title 42 allows for mass expulsions — which are illegal, according to American and international law. It clashes with the Convention against Torture and a 1967 protocol on the status of refugees.
It’s worth remembering that when Title 42 was implemented by the Trump administration, the Centers for Disease Control and Prevention’s own medical experts opposed using the policy to limit political asylum.
The law was forced on the agency by the then vice-president Mike Pence. Olivia Troye, a former Pence aide, resigned in protest, emphasizing that the policy was authored by Trump’ s notoriously xenophobic immigration adviser, Stephen Miller.
Yet, on Oct. 2, 2021, the CDC recommended that invoking Title 42 “continues to be necessary at this time.” Politico quoted a White House official as saying: “The CDC has determined that the continued expulsion of certain individuals under Title 42 is necessary due to the risks of transmission and spread of COVID-19 in congregate settings, such as U.S. Customs and Border Patrol stations, as well as the threat from emerging variants.”
This, of course, is not true. Like other residents in the U.S., asylum seekers can be tested, and if COVID-19 positive, they can be quarantined and treated medically. If negative, they can be released temporarily into the country pending a final immigration court decision (which could take years amid a growing backlog). They do not need to be deported.
On Sept. 16, 2021, a federal judge blocked the administration from using Title 42 to expel migrant families, but on Sept. 30, the U.S. Court of Appeals for the D.C. Circuit issued a stay of that ruling, preserving the administration’s ability to use the law to expel asylum seekers without a hearing.
In the meantime, public health experts have emphasized the policy is unnecessary, because the U.S. has the resources to safely process people seeking protection under asylum laws.
A number of epidemiologists and public health experts from Columbia, Johns Hopkins, Michigan and George Washington University wrote to the Biden administration condemning the policy as “scientifically baseless and politically motivated.”
These experts noted that people who refuse to get vaccinated, rather than asylum seekers, are the ones driving increased infections in the U.S.
Today, many asylum-seekers on America’s southern border are families or children who want to turn themselves in to the Border Patrol so they can apply for asylum or other protections.
This group represents a much larger share of the overall migrant population in 2021 than it has in the past, comprising about 40 percent of the overall flow from Central American countries, mainly Guatemala and Honduras with a growing percentage from South America, the Caribbean and Africa.
When an asylum seeker is expelled under Title 42, there is no record of the expulsion and no penalty for the individual. The person simply is removed from the country, without any formal mark on his or her record.
Many people therefore attempt to cross the border repeatedly, hoping eventually to evade the Border Patrol. This means that the Border Patrol’s numbers are off. By a lot!
Thousands of migrants were being counted more than once in Border Patrol apprehensions during the last fiscal year. Department of Homeland Security officials estimate this recidivism rate might be as high as 38 percent — which means that more than one-third of the individuals removed from U.S. territory were apprehended more than once.
How many individuals actually were apprehended? If the 38 percent recidivism estimate is correct and each recidivist tried to enter only twice, the total number of apprehended individuals is about 1.23 million.
But no figures are available for how many times the recidivists actually make. If the average recidivist attempts to enter three times, the number of apprehended individuals is approximately 966,000.
U.S. Customs and Border Protection (CBP) has estimated the true number of unique individuals encountered at the southern border has been about midway between these numbers, approximately 1.1 million, rather than 1.7 million, as often cited.
This number does not exceed the highest level recorded, in 2000. And the 38 percent who are apprehended repeatedly contribute substantially to the backlog at the already stretched and overloaded processing centers on the Southern border.
At this point, Title 42 is functioning poorly as an obstacle designed to obstruct thousands of migrants, many of whom may have valid asylum claims. Apparently, the Biden administration seems to believe that this cruel and illegal deterrence policy at the border is outside of the media focus.
The policy will backfire. Considering the huge influx reflected by Homeland Security data, and the backlog the policy has produced, it’s likely to contribute to public opinion that the Biden administration is failing the country on immigration.
Biden’s popularity will suffer under Title 42, hurting his party’s chances a year from now.
Morristown resident Barbara Franz, Ph.D., is a professor of political science at Rider University.
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Wow. So I’m assuming the author agrees with a catch and release program that used to be implemented under the Obama Admin? Denying that we have far more people attempting to enter the US, illegally, than we have ever had before, and allowing that to be unaccountable is completely irresponsible and surely spits in the face of immigration control. It appears to be a back door referral for open borders.