How Title 42 Is Complicating Biden’s Border Policy

1. How many people are illegally entering the US?

US Border Patrol reported 2.2 million apprehensions of migrants entering the country without authorization in the 12 months that ended Sept. 30, the vast majority crossing from Mexico. The number, which includes some people caught more than once, compares with almost 1.7 million the year before, the previous record. It’s impossible to know what share of border crossers manage to evade patrols; the Department of Homeland Security in 2017 estimated that 15% to 45% do.

2. How have authorities quickly expelled half the arrivals?

They’ve used Title 42, a public health order dusted off under Trump to curb migration at the start of the Covid-19 pandemic. In about 1 million of the 2022 apprehensions, authorities used the rule to quickly send individuals back to their homeland or to the country from which they entered the US. The alternative is to process apprehended migrants under regular immigration law. That gives migrants a chance to remain in the US at least temporarily in order to make long-shot bids at gaining asylum, available to people who can show they have a legitimate fear of persecution at home. On Nov. 15, a federal judge ruled against the continued use of Title 42, raising the prospect of exacerbating the backlogs in processing migrants that in the past have led to overcrowding and other poor conditions in border holding facilities. To prepare for handling the migrant crush without the rule, the Biden administration requested and received a delay in implementing the judge’s decision. On Dec. 27, the Supreme Court blocked the ending of the restrictions while it considers a bid by Republican state officials to keep the rules in place.

3. Where are migrants coming from and why?

Historically, the majority of people who illegally crossed the border were Mexicans. By 2016, deteriorating conditions in Central America’s so-called Northern Triangle — consisting of El Salvador, Guatemala and Honduras — made people from this region the biggest group. More recently, border patrols have intercepted large numbers of people from Venezuela, Nicaragua and Cuba. In October, nearly 70,000, or 38%, of the migrants apprehended were from these three countries. Economic and political instability there has been worsened by the pandemic, and the Biden administration argues that this accounts for the surge in overall arrivals. Critics of the president say his accommodating approach to immigration has served as an invitation to foreigners to illegally enter the US. 

4. How has Biden changed immigration policy?

Since taking office in January 2021, Biden, a Democratic president, has unwound many of Trump’s immigration policies. He halted most though not all new construction on barriers Trump commissioned on the US southern frontier, and he undid a policy that required asylum-seekers to wait in Mexico for their court hearings. Immigration arrests in the US interior were down in fiscal year 2021, which comprised most of Biden’s first year in office, compared to 2020 under Trump. Biden originally tried to rescind Title 42, only to be thwarted by a different judge’s ruling. Then, in the face of the influx at the border, he actually expanded use of the rule in October by applying it to all Venezuelans entering the country without authorization. 

5. How has the fight over immigration been recharged?

To express their dismay with the increase in illegal crossings, Republican governors in Texas, Arizona and Florida sent thousands of apprehended migrants north to so-called sanctuary cities, which refuse to comply with immigration-enforcement efforts. The unannounced arrivals taxed social services in New York City, Chicago and Washington, DC. Although it’s the federal government’s responsibility to patrol the border and process unlawful entrants, frontier states end up as a way station for many of those awaiting asylum hearings and for migrants who are never apprehended. The office of Texas Attorney General Ken Paxton estimated in 2021 that his state spends $850 million annually on health, medical, housing and educational costs related to undocumented immigrants. Republican officials across the country have said that immigrants living unlawfully in the US take jobs from citizens and are more prone to commit crime, claims amplified by party candidates in Nov. 8 congressional, state and local elections.

Some economists say illegal immigration reduces work and wages for low-skill workers, especially Black and Hispanic Americans; others challenge that argument and the data behind it. A number of studies have concluded that migrants commit crimes at lower rates than native-born Americans. For example, in Texas in 2018, the share of undocumented immigrants who’d been convicted of a crime was 45% below that of native-born Texans, according to a Cato Institute analysis. Scholars who support higher levels of immigration also say estimates like Paxton’s fail to consider economic activity and tax revenue generated by immigrants. 

7. How does Biden want to change immigration policy further?

On his first day in office, he proposed a bill creating an eight-year path to citizenship for most of the 11 million immigrants living illegally in the US. However, Biden’s party hasn’t had sufficient control of Congress to pass legislation without support from Republicans, among whom views on immigration hardened under Trump. Even if the bill were to become law, it deals only with undocumented migrants in the US as of Jan. 1, 2021, leaving unresolved the issue of newer and future arrivals. Some immigration experts argue that to seriously slow unlawful border crossers, the US must greatly expand visa access for migrant laborers. Such a plan would also run into Republican opposition to opening the door to foreigners.

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