The Trump-era public health measure known as Title 42, which empowered U.S. border authorities to remove migrants without hearing their asylum claims, is scheduled to expire Dec. 21, by order of a federal judge who rightly found its utility in preventing covid-19’s spread has lapsed. The Biden administration is now bracing for a surge of unauthorized border crossers, many of them seeking asylum, on top of already historic levels.
No magic solution is available for a mess decades in the making that Congress has refused to address even as the flow of migrants has overwhelmed the nation’s broken immigration system and resources along the border. Earlier efforts to fashion a comprehensive immigration overhaul have met with repeated failure. So, lawmakers on Capitol Hill are scrambling to fashion a fix that would tighten border enforcement and also provide a pathway to legal status for “dreamers,” migrants who were brought to this country as children and raised as Americans in all ways but on paper.
That prospective proposal, sponsored by Sens. Kyrsten Sinema (I-Ariz.) and Thom Tillis (R-N.C.), is a compromise containing elements that both parties would find objectionable; it faces long odds on Capitol Hill in both the current lame-duck session and in the next Congress, when Republicans will take control of the House. Details are still being worked out, but it reportedly would retain Title 42 restrictions on asylum claims, or something like them, for a year or more until new processing centers are built to contain the disorder along the border, and accelerate decisions on admitting or expelling migrants based on their situations.
For Democrats, an ongoing ban on most asylum claims would be hard to swallow; for Republicans, lifting the deportation threat and providing a path to legalization for dreamers — even though it is broadly popular, including with most GOP voters — would leave them vulnerable to accusations from the party’s immigration restrictionists that they had backed “amnesty” for as many as 2 million unauthorized migrants.
Yet, even partisans with deep reservations would be wise to think again. For despite the political difficulties the proposal would raise on both sides of the aisle, it represents a plausible way to avert short-term chaos at the border, while finally putting to rest the decade-long debate over dreamers, for whom three-quarters of Americans support legalization.
The prospect of a worsening crisis at the border is not theoretical. Homeland Security officials, already grappling with average daily apprehensions approaching 7,500, are braced for a sharp increase when Title 42 is lifted in less than two weeks, with estimates of 10,000 a day or more. That would push border enforcement to the breaking point after a year in which a record 2.4 million migrants were encountered.
In the absence of at least $25 billion of new border security funding that would be included in the proposal being formulated in the Senate, the administration does have options, but they are limited both by lack of resources and by legal and political constraints.
To its credit, Homeland Security has already begun ramping up a program to accelerate the adjudication of asylum claims by hearing officers stationed at the border. The idea is to quickly identify migrants with plausible claims, and to avoid shoveling thousands more cases into the clogged immigration courts each month. The backlog in those courts is nearly 2 million cases, meaning that final decisions in deportation cases take years. Yet hundreds more officers are needed to hear asylum claims, and funding for them is in doubt without congressional action.
The administration needs to expand other legal pathways for migrants to enter the country, not least to help meet the economy’s need for workers. The Labor Department reported 10.3 million job openings at the end of October, amid an ultralow unemployment rate of 3.7 percent. Plenty of U.S. companies would be happy to have more legal employees. And increasing lawful pathways could put at least some smugglers who prey on desperate migrants out of business.
One model is a program, unveiled in October, to admit up to 24,000 Venezuelan migrants who apply remotely to enter the country and, if accepted, fly legally to the United States. That undertaking has succeeded in cutting border crossings by Venezuelans, which were running at over 1,000 daily, by more than 90 percent. But it relies partly on the threat of immediate expulsion of Venezuelan asylum seekers who cross the border illegally, an option set to evaporate when the Title 42 health measure disappears Dec. 21.
It would also be useful if the administration could revive a similar, three-decade-old accord with Cuba, suspended in 2017, that provides 20,000 visas annually for migrants from the island. Officials say they are making progress in talks with Cuba — a hopeful sign, given that more than 220,000 Cuban migrants were apprehended at the border last year.
The administration should seek other ways for migrants to make their U.S. asylum claims without making the perilous trek to the border, including at embassies and consulates in Central America and South America. That would require a major diplomatic push from the State Department, which is not currently in evidence.
Less welcome would be an additional, draconian step apparently under consideration, and recently leaked to media outlets, that would effectively end the asylum system as it exists. The measure would revive some form of what the Trump administration dubbed a “transit ban,” which forbade some Central American migrants from seeking asylum in the United States unless they had already applied and been refused refuge in another country.
Such a move would be at odds with U.S. treaty obligations, law and tradition, and is opposed by cooler heads in the administration. While comprehensive immigration reform seems out of reach in the current political and legislative environment, there is an imperfect short- and medium-term solution to the coming surge in migration. That is to combine tougher border enforcement with expanded avenues for migrants to enter the country legally.
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