#WTH: The end of title 42
The border chaos, the abdication of America's leaders, and how to fix it. Maybe.
Three things from our pod this week with Andrew Selee, the President of the Migration Policy Institute.
You can’t solve the problem at the border until you fix the immigration system. You can’t fix the immigration system until you fix the problem at the border.
Illegal immigration continues because the rewards are greater than the risks.
The conceptual solution isn’t the problem. The political will is the problem.
Folks, none of this is rocket science. But take a look down below at our show notes and examine the numbers. Illegal immigration hasn’t grown exponentially, but it has grown geometrically, year on year; step back from the anger that attends this issue and ask why? Because it’s better in America than where these people are coming from. Because there are jobs here. Because although it’s unpleasant and risky to get in, it’s faster to come illegally, it’s easier to come illegally, and there are loopholes (asylum) in the system that make it hard to expel illegals. And yes, they are illegals.
Worse: How are these illegals getting here? With traffickers. Human traffickers who buy and sell human life, rape and murder at will, and then come back for more, again and again.
OK, so what’s wrong with us that we can’t fix this? Part of the problem is actually now Title 42, which allows authorities to punt people across the border, but doesn’t penalize them, so they can enter again and again and again. Part of the problem is that we don’t have the people to keep the border secure and we don’t have the people to process anyone via the legal route. So, hmmmm. You can’t get an appointment legally. You can get through the holes illegally. Conclusion? Duh.
Solving all this requires political maturity and will. Apparently we have none. And then there are some who think we shouldn’t have borders. On the other side, others who think Mexicans are all rapists. What about the millions of undocumented, illegal aliens residing in the United States, many of whom have been here so long their kids were born here. Should they be part of the system? Or do Dems only want them because they’ll vote D? (Of course, Hispanics *don’t* actually all vote D, ask Ron DeSantis.)
Why solve this when we can simply use the issue as a cudgel to score political points? After all, there are criminals and terrorists among the immigrants. And there are bigots and haters among the opponents of even legal immigration. Why not talk about the outliers rather than the problem?
Andrew Selee thinks the seeds of a solution are out there. He’s an optimist and a happy warrior. Have a listen and see what you think.
HIGHLIGHTS
How did we end up with this mess at the border?
AS: We need to make decisions about people coming to the United States a lot earlier. When people get to the border, it's too late. There may be exceptional cases where people qualify for asylum and are extreme cases and you need to let them in. But the more you can vet people for protection needs earlier on in the hemisphere, much better. The more you can give people real information about legal ways of coming to the country. And there aren't enough legal ways to come into the country, not enough to meet the labor demand in the US, not enough to meet the supply of people that want to come, but there are a lot more than people know about.
Who are these folks, for the most part?
AS: They're economic migrants. There are some people seeking protection, but there's a large number of economic migrants and there are people who are seeking protection who might be able to be protected somewhere else as well. We should be honest about that. So there's lots of reasons why people come and we should have great respect for them and the decision they've made to try improve their family's livelihood, but that's not how you build a policy. At the same time, letting lots of people in ways that aren't regulated, that don't follow the immigration laws in the books tends to corrode people's faith in the immigration system.
What do we do?
AS: Now, I think there are two questions here. One is how do you build the legal pathways because we don't have them in the ways we need them, but two, also, how do you maintain the integrity of the system we have at the border? And you got to do both of those.
Is this all about Biden’s open borders?
AS: I think it started before that actually. I mean, we wrote a report back in 2013. We started this in 2011 looking at Central American migration. We wrote, “Central Americans are starting to come in large numbers because they now have the family ties. They now have the smuggling networks. This is the next big thing."
Would continuing Title 42 solve the problem?
AS: When you expel someone under Title 42, it's not a legal entry. It's counted as though you did not come into the country. So you can't prosecute people for second and third entries, which is what Obama was doing. And what Bush started, actually it started in the Bush administration. Obama ramped it up. Trump continued it. Title 42 is oddly enough, I mean, it worked really well at the beginning, although it worked well in part because the whole world was stopping. I mean, it was a lot easier also to catch migrants at a time where people weren't out on the road, where people were sort of putting off journeys because mobility had stopped generally.
Who’s to blame?
AS: I think all governments, all of the administrations have made major errors on this. I mean, I don't think the Trump strategy, which was enforcement alone, was going to work. I don't think the Biden strategy, which was loose on enforcement was working. And I do think some part of the increase owes to that certainly, although some part of the increase was there already. I hope that where we're getting to, and this is an idea that's been floated in Democratic and Republican administrations of my Democrat and Republican members of Congress, I hope we're getting to a point where we're thinking about how we do protection earlier in the region, how we give people information on legal pathways and how we're intentional on holding the border at the same time.
But you can’t implement solutions without controlling the border, right?
AS: I actually wrote something that came out this morning that says exactly that, which is that you need legal pathways in order for enforcement to work, but you also need enforcement for legal pathways to work. They're not going to be driven to use the legal pathways that exist to get in line to try and get a visa that may take a long time to actually come to fruition or may not, unless they feel there isn't an alternative. And so this has to sort of work in tandem.
And does paying Central American countries to keep people work?
AS: Right now, remittances are 20% of Guatemala's GDP, and they are over a quarter of El Salvador's and Honduras and somewhere around there for Haiti as well. And so there are people in the governments in Central America that are trying to figure out legal pathways. I would have to say they've kind of gotten the memo on that, that it's better to have people go legally. But governments are complex things and I think isn't a lot of urgency in some of these countries and in some of the governments to stop it.
Isn’t the burden for this illegal immigration on the U.S. taxpayer?
AS: Just on the fiscal side, we're actually coming out pretty good because a lot of people are paying Social Security, but they're not able to collect it at the end. Social Security's floating thanks to a lot of people that pay in and aren't able to collect it at the end according to a number of studies that have been done by now. And they are in fact paying taxes, they're not all paying income taxes. I mean, it depends whether you're in the formal or informal sector. A lot of people get false Social Security, which false Social Security are actual Social Security numbers. And they're paying in, but they're not paying out. But some people are in the informal economy, you're right, but they're still paying all sorts of state and local taxes. They're paying sales tax, they're paying rent. And through rent, they're paying taxes, indirectly. So they end up paying a lot of taxes.
But there are the border costs, the hospital costs, the school costs that call unequally on border towns, no?
AS: They're uneven fiscal impacts. I mean, the fiscal impact over time could be a wash. It could be even to our benefit. But certainly, there are uneven impacts in communities that are near the border. We have lots of people falling, for example, is there off the wall. You have lots of people running through. Communities that have large numbers of people that arrive quickly. School systems that suddenly have 20 students who show up who haven't learned how to read or write. Those are really impacts, and those impacts do happen unevenly across the country
Why can’t we solve this?
AS: Immigration has become symbolic politics. I used to go to the office during the day. I used to tell people this. In the morning, I would say, "The issues we work on, they're everywhere in the news. We're working on the most important issue in the country." And by noon, I would realize that most of the conversation was about ideology and symbols. And that very little of it was actually about policy, which is what we're trying to work on. And in fact, we have very few serious policy conversations on this issue.
So I think it is a hard issue to get at in terms of policy solutions. And by the way, you can get people in the room who are of very different ideologies on this, and they could hammer out a solid set of policy ideas that they would agree with in principle. But if they're politicians, they're not going to be willing to go back and sell them to their constituents. And that's true on the left and on the right. You could get a Democrat and a Republican, you get three Democrats, three Republicans in the room. You could probably come out with a set of things that people would be willing to give on and come up with some pragmatic answers. But at this point, it's very hard for either side to back down on this, because this is not about policy. It's about selling symbols to people.
So what do we do?
AS: I think the tools we got is, you know, get rid of Title 42 and you start processing under the normal way of processing people called Title 8, which requires that you actually run through some process and then you send people back to countries of origin with a five or 10 year ban. If they come in, again, they're prosecutable. They're prosecuted for a misdemeanor or felony. Secondly, you go after smugglers. Third, you start to create protection pathways that are a lot narrower, that are important. I don't think we should stop giving people protection who need it. We know there are people running from dictators and from drug cartels and from gangs that most of them probably can get secure protection in their country, but not everyone. And so we need to be much more clinical about finding those people ahead of time rather than at the border.
Fourth, we need to be serious about giving people access to the legal pathways that exist to make sure they know about them. And when it becomes possible, expanding them. And again, that's really hard to do. And here, Marc, I agree with you from something you said earlier, if we can bring the numbers down, and I do agree that you have to bring the numbers down before we can have the legislative conversation. The numbers come down at the border, then is to have the time in Congress and say... But only then are we going to be able to have a real conversation where we say, "What workers do we need in the future? How do they match with people out there? How do we expand the legal pathways in a controlled way that allows the workers we need to come into the jobs that we have?" But I don't think we're going to get there without bringing the numbers down.
Some of the real victims here are actual asylum seekers vs economic migrants, right?
AS: I think that's one reason to be much more clinical on asylum and actually do it earlier on. Because the reality is this open asylum system that we have where anyone can apply, but no one ever gets a decision, it takes five to 10 years, means not only do people file claims that aren't going to win and encourages people to come to the border, but it means people that actually have protection needs aren't getting asylum.
So what happens this week?
AS: Now, this could be stayed in the courts, but as of Friday, you have to make an appointment at a port of entry to be able to get asylum on U.S. soil. In return, they're going to open up processing centers where people can come in, countries of origin, so starting in Guatemala, Columbia, and then extending to other countries where people can be pre-screened and if they're determined to have protection needs, but it's a fairly high standard, then they can be put on an airplane eventually. It'll take a little time to process it, but they say they can do it in three months. We'll see. And eventually be able to get into the United States, skipping the smuggler along the way. But it's going to become almost impossible to get asylum unless you make an appointment
But I do think it's gotten to a point where it's impossible to sustain the system as it exists precisely because of what Dany says. Because not only is it creating an incentive for people to come, but it's also backlogging the system for people with real, genuine asylum needs. So it's an unworkable system.
Why won't it work?
AS: My guess is the bigger issue than a stay in the courts is going to be they simply don't have the people to operate the system. Having spent a fair amount of time with folks in the Border Patrol and the office of field operations of CBP, my sense is they just are understaffed and they're not even close. I mean, they're better staffed than they were. They have a whole set of processing people that they've been able to hire over the past two years, which has helped on the Border Patrol side, but the numbers of people they're going to be dealing with on Friday and next week and the week after that, it is not clear to me they're going to be able to process people under Title eight, the normal way of processing people, which does take longer than Title 42.
It's not clear to me that they're going to be able to hold people and do the hearings. It's not a hearing. It's actually an interview that allows them then to return people quickly to the country of origin. It's not clear to me they have enough planes to return people to country of origin. If it works, if it starts to work the way the system is going to play out is this, once they can get numbers down a little bit, which is, if you come between ports of entry, you will get an interview. If you do not meet a very high standard, you will be, which most people cannot meet, convention against torture standard, not an asylum standard. You will be returned to your country of origin. You'll be put on a plane under expedited removal and you'll have a five or 10 year bar from returning.
If you get an appointment at a port of entry, then you are eligible to have an asylum hearing, or at least an asylum interview, credible for your interview and then maybe an asylum hearing. We'll see when they're able to make that work. I don't hold out a lot of hopes that this system will be functioning next week. I do think it's the right way though.
Full transcript here.
SHOWNOTES
By the numbers
From the Customs and Border Patrol data site:
· FY Nationwide Encounters went from 646,822 in 2020, 1,956,519 in 2021, 2,766,582 in 2022, and already at 1,544,087 for 2023 to date.
· A significant percentage of these were under Title 42 authority (there are Title 42 and Title 8 data represented)
o 1,103,966 of the 2,766,682 encounters in 2022 were under Title 42
In a Dramatic Shift, the Americas Have Become a Leading Migration Destination (Migration Policy Institute, April 11 2023)
Why nationalities matter as US braces for migration surge (Wral News, May 3 2023)
From the Federal Register: “While a number of factors make it particularly difficult to precisely project the numbers of migrants who would seek to cross the border, without authorization, after the lifting of the Title 42 public health Order, DHS encounter projections and planning models suggest that encounters could rise to 11,000-13,000 encounters per day, absent policy changes and absent a viable mechanism for removing Cuban, Haitian, Nicaraguan, and Venezuelan (“CHNV”) nationals who do not have a valid protection claim.”
Notable tweet from Andrea R. Flores, Biden’s former director for border management: “Deploying military personnel suggests a concerning lack of readiness for this transition. [DHS] had over two years to plan a gradual wind down of Title 42. Instead, the situation has escalated into a greater emergency that will, once again, lead to troops in border communities.”
A Post-Title 42 Vision for Migration Management Comes into Focus (MPI, April 2023)
Migrants surge US border as pandemic-era expulsion law sunsets (AP News, May 8 2023)
The End of Title 42 Border Policy Puts Migrants in a Quandary (May 4 2023)
Biden to send 1,500 active-duty troops to the Southern Border (New York Times, May 2 2023)
House to vote on GOP immigration bill as border restrictions end (Axios, May 7 2023)
House Republicans are planning a Thursday vote on their border bill. But they are still talking with members about pieces of the proposal. (Politico, May 5 2023)
Sinema and Tillis pitch two-year border patch as Trump-era policy expires (Politico, May 5 2023)
As Biden takes control of the border with the end of Title 42, Congress is absent on immigration reform (NBC, May 5 2023)
CBP Makes Changes to CBP One App (CBP.gov, May 5 2023)
Migration’s Root Cause Isn’t That Complicated (Bloomberg, April 20 2023)
Federal Judges Step into the Void to Set US Immigration Policy (Migration Policy Institute, March 30 2023)