Biden’s border crisis: Title 42 is a distraction, not the solution

It’s unfortunate that Title 42 has become a focal point in border security discussions. The CDC issued that order to reduce the risk that migrants entering the country illegally would bring COVID into the United States.

Chief Justice John Roberts’s temporary stay of an order to end the program — as part of a lawsuit from 19 Republican state attorneys general to keep it in place — is simply the latest eddy within the tempest of an unfortunate teapot: Title 42 has little — if any — relevance to our current border crisis, and certainly isn’t the answer. The real issue is Biden administration immigration policy.

It’s helpful to recall there was no comparable border crisis when the CDC reported the first laboratory-confirmed case of COVID in the United States, or when it issued the Title 42 order.

And Title 42 didn’t prevent a surge in the number of illegal crossings. 

The Border Patrol had more than 2.2 million encounters with illegal crossers at the Southwest border in fiscal 2022, the highest number ever recorded. Compare that to the 851,508 apprehensions in fiscal 2019, the last full year before the issuance of the Title 42 order.

Less than half — 1,054,084 — of the 2.2 million illegal crossers were expelled under Title 42.

Illegal crossers have a statutory right to apply for asylum, but that does not include permission to enter the United States unlawfully. The law says: “Any alien who … enters or attempts to enter the United States at any time or place other than as designated by immigration officers, … shall, for the first commission of any such offense, be fined … or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined … or imprisoned not more than 2 years, or both.”

A recent report from the DHS Inspector General indicates that most of the migrants the Border Patrol apprehends are not put in detention facilities or expelled under Title 42, but rather are processed for outcomes allowing them to be released into the United States.

I think the Biden administration caused the record surge in illegal crossings and that it intends to let it continue.

Migrants are coming here from all over the world, so it is difficult to speculate on their motives.  I am sure, however, that the administration’s practice of letting most illegal crossers into the country is a major factor.

To my knowledge, no previous administration has released as many illegal crossers into the United States as the current administration. According to the legal disclosures in Biden vs. Texas, the current administration had released 1,049,532 illegal crossers into the United States as of June 2022. In fact, former president Barack Obama focused his administration’s enforcement efforts on the removal of recent border crossers to deter illegal border crossings.

The administration just announced an updated six–pillar plan for securing the border when Title 42 is terminated.

Pillar 1

The administration will hire 300 more border patrol agents, install linear ground detection systems and more surveillance towers, close gaps in the gates along the border, and add 10 soft-sided facilities to increase holding capacity.

What is the point to making these changes if the administration is going to continue to release most of the illegal crossers into the country?

Pillar 2:

The administration plans to increase CBP processing efficiency. Additional processing personnel, facilities improvements, and digitization efforts have already reduced the time illegal crossers spend in custody from an average of 85 hours in March 2021, to only 58 hours.

This just facilitates releasing illegal crossers into the United States as quickly as possible.

Pillar 3:

The administration says it will impose consequences on those who cross the border unlawfully by optimizing and speeding processing of those subject to expedited removal, detaining single adults when appropriate, and referring for prosecution those whose conduct warrants it.

It also says it will increase its Alternatives to Detention (ATD) program for individuals released from custody pending their immigration proceedings. Results so far show that more than 99 percent of these people do appear for their scheduled immigration court hearings as required

The administration says it will also increase referrals for prosecution of migrants seeking to evade apprehension, repeat offenders, and those engaging in smuggling efforts.

These enforcement measures would help if the administration were serious about implementing them, but that does not appear to be the case. For instance, the statutory provisions for expedited removal proceedings require mandatory detention, and the administration does not appear to be  planning to construct additional detention facilities to be able to meet that requirement. 

Pillar 4:

The Biden administration says it will bolster the capacity of NGOs to receive noncitizens after they have been processed.

This is only necessary if the administration intends to continue its practice of releasing most of the illegal crossers.

Pillar 5:

The administration says it will target and disrupt the transnational criminal organizations (TCOs) and smugglers.

I have no reservations about this pillar: It’s needed. 

Pillar 6:

The administration says it will collaborate with international and federal partners to deter irregular migration south of our border.

This would be a good idea if it were coupled with ceasing to admit most illegal crossers into the country.

The bottom line is this: People thinking of trying to cross the border illegally know they have a better than 50-50 chance of getting in — even if they are caught. Add to that the fact that someone who’s released into the United States usually waits — on average — more than two years to be called to an immigration court hearing and the fact the U.S. is experiencing a labor shortage so the chances of being hired are high, and you have conditions for the proverbial “perfect storm” — a record-breaking surge in illegal immigration.

I am not impressed with the administration’s plan, and I am afraid that really drastic measures will be needed if it fails to stem the approaching tsunami of illegal crossings.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at: https://nolanhillop-eds.blogspot.com