Critics say Biden's border control plan is too reliant on Title 42

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Biden has a new border control plan. Critics say it’s tied too closely to Title 42

President Joe Biden’s new border control policy claims to increase security at the border, reduce the number of illegal border crossings and expand legal pathways for migrants. “Instead of safe and orderly process at the border,” Biden said at a Thursday White House briefing. “We have a patchwork system that simply doesn’t work as it should.”

But critics say it’s completely reliant on Title 42 — a policy implemented to curb the spread of covid-19 that the Biden administration now views as dated.

Title 42, which will remain in place until the court makes a final ruling next year, is a Trump-era policy put in place by the Centers for Disease Control and Prevention to stop the spread of covid by allowing for the rapid expulsion of migrants who crossed the border illegally.

Under the Biden plan, the Department of Homeland Security is given more power to expel migrants into Mexico. That kind of expulsion in Biden’s plan is allowed only because of Title 42, which was set to expire on Dec. 21, 2022, but was extended by the Supreme Court.

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Authorities have publicly said that if Title 42 is lifted, they expect to see a surge of immigrants at the southern border, though the size of that surge is unknown.

The implementation of Title 42 resulted in a backlog of migrants waiting to be processed at the border. News outlets have reported sources predicting anywhere from 14,000 to 18,000 migrants a day waiting to be processed. And, at times last year, there have been 8,000 migrants per day at the southern border, CNN reported.

Pedro Rios, director of the American Friends Service Committee’s U.S./Mexico Border Program, said the Biden proposal is not only based on a policy the White House has said needs to expire but also unnecessarily complicates immigrants’ situations.

“Where the Supreme Court is forcing Title 42 expulsions to continue,” Rios added, “the Biden administration is under no requirement to apply these expulsions to more people.”

The parole expulsion exchange

A big part of the Biden plan: a parole system for qualifying Venezuelans already in place as of October will now include migrants from Cuba, Nicaragua and Haiti.

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“Up to 30,000 individuals per month from these four countries, who have an eligible sponsor and pass vetting and background checks, can come to the United States for a period of two years and receive work authorization,” according to a White House fact sheet laying out this new proposal.

In his briefing, Biden noted that since implementing the 2022 policy for Venezuelans, the number of Venezuelans attempting to illegally enter the U.S. has dropped from around 1,100 migrants per day to less than 250 per day.

But this expanded parole policy does have limitations.

For one, the policy comes at the expense of an increase in migrant expulsions and is reliant on the use of Title 42 to quickly deny migrants enter at the U.S.-Mexico border.

“They basically negotiated with Mexico to accept up to 30,000 people from those countries per month,” said Alexandra Miller, director of the Immigration Justice Campaign. “So that’s the stick, and the carrot is the parole program.”

Another issue with this expanded parole program, according to Miller, is that because it is nationality-based, it leaves behind a considerable number of migrants, specifically from Guatemala, Honduras and El Salvador, among others.

The expansion of the online appointment portal CBP One

The policy also includes expanding an online mobile appointment portal known as CBP One, with the intention of creating a pathway for asylum-seekers or other migrants to schedule appointments at the port of entry. Under this new policy, individuals can use CBP One directly instead of a third party using the application for asylum-seekers. The new policy also says that when Title 42 is lifted, CBP One can be used to “significantly reduce wait times and crowds at U.S. ports of entry and allow for safe, orderly and humane processing.”

Miller pointed out, though, that while in theory technology to streamline access to the border is positive, this expansion of CBP One can create barriers that limit access to asylum as it is normally supposed to function.

“You have to have a cellphone to be able to use CBP One, you have to have an understanding of the technology, you have to be able to speak the languages available at CBP One,” Miller said. “I don’t know what that’s going to mean for people who are illiterate or Indigenous language speakers.”

Notice of proposed rule-making

Although not explicitly mentioned in Biden’s press briefing as part of his proposal, the Department of Homeland Security and the Department of Justice also released plans for a proposed rule, hearkening back to the “Transit Ban,” a Trump-era policy that restricted asylum for people who had transited through a third country to enter the United States.


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This rule would specifically target individuals who traveled through a third country, did not seek asylum in one of those countries and did not use legal migration methods.

According to the DHS and the DOJ, the proposed rule is intended to bar migrants who have circumvented legal means of immigration and who “also fail to seek protection in a country through which they traveled on their way to the United States” from asylum eligibility.

Increasing the use of expedited removal

The Biden administration’s proposal also includes a plan to increase “the use of expedited removal.”

More specifically, Alejandro Mayorkas, secretary of the Department of Homeland Security, noted during Thursday’s press briefing that the Biden administration, in anticipation of lifting Title 42, will expand the use of Title 8. Title 8 allows for the expedited removal of individuals who are determined not to have a legal basis for being in the country.

“Once the Title 42 public health order is no longer in place, DHS will use its longstanding Title 8 immigration enforcement authorities to process all individuals encountered at the border,” Mayorkas said.

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The problem, however, with expedited removal, Miller said, is that often people don’t have access to counsel, and people who might have meritorious claims can be expelled without having a chance to make their claim.

Rios believes that these proposed measures “continue to erode the premise and the promise that asylum offers to those that are seeking shelter from harm.”

He added, “It’s a slippery slope that the Biden administration is engaging because other countries might follow suit and decide that asylum is no longer an obligation that countries need to offer.”

Thanks to Brett Zach for copy editing this article.

  • Khaya Himmelman
    Khaya Himmelman

    Reporter

    Khaya Himmelman is a reporter at Grid. A former misinformation reporter for the Dispatch, she is a graduate of Columbia Journalism School and Barnard College. Khaya has appeared on CNN to discuss misinformation in the media.