The end of Title 42 seems to have caught the Biden administration by surprise. It should not have. In the short run, the only alternative is damage control, especially for the thousands of would-be migrants who are being denied due process. In the long run, though, there is an opportunity to put together an alternative that might have some chance of bipartisan support.
It is past time for Secretary of Homeland Security Alejandro Mayorkas to go. He has, sadly, proven nowhere near up to the job. I have not seen a single photo op of him at the border. If I were in his place, confronting the biggest challenge in my department and perhaps a make-or-break issue for the administration, I would be spending half my time at the border, prodding, cajoling and overseeing.
As it is, while the situation at the border is less disorderly than was expected, confusion still reigns. Dedicated, able pro bono lawyers I have talked with say that in the first days after Title 42 ended they were approached by government officials who asked them about the current rules, which seemed to change from minute to minute. Those same lawyers found their possible clients in the hands of the Border Patrol, and thus unable to talk with them. When and if they did, it was for but a few minutes immediately before the migrant’s Credible Fear Interview, usually conducted impersonally by loudspeaker in small rooms along the border.
From the beginning, using Title 42 to peremptorily deny asylum because of the pandemic was an ugly stopgap, one the Biden administration was determined to correct. Given the lead times the administration had, all the rules should have been in place and well known to all concerned, and the asylum app should have been up and running smoothly. We can only hope that over time the simple mechanics of the process improve, perhaps with new leadership.
In the long run, though, the asylum process needs to be dramatically reshaped. None of the alternatives is appealing, and our hyper-polarized politics makes them all the less so. Perhaps the least bad alternative would be to seek permission to build major holding centers in Mexico, Guatemala, and other emigration countries. Asylum-seekers could go there to be protected while their claims are adjudicated. To be sure, those would-be asylum-seekers would be in grave danger from the gangs or traffickers they were fleeing as they entered or left the centers. Indeed, those granted asylum would need to be evacuated safely to the United States.
And for those would-be migrants whose motivation is economic, not mortal fear — more than half of current asylum seekers, according to a lawyer I spoke with who is at the border — the risk of association with the centers would be lethal. Here, the system would have to rely on a crude form of deterrence: especially in these days of cell phones, the latest word about the chances of being granted asylum would travel instantly among possible migrants. Many, if not most, of the would-be economic migrants would not take the risk of applying for asylum. It would be a cruel deterrence but perhaps the best that can be devised.
One of the great fictions in the current non-debate is that the border is out of control. It is not. These are not the days of the 1990s when young Mexican men migrating for work sought desperately to avoid the Border Patrol to enter the United States illegally. Now, the migrants are asylum seekers who surrender themselves voluntarily to the Border Patrol, which now reckons that the numbers who slip in unaccounted for are fewer than at any time in recent memory.
Unhappily, the Republicans, in thrall to Trump, seem to want to keep the issue alive as red meat for their base instead of seriously addressing it. Their approaches are not policies but rather stunts for the base, like busing or flying migrants to liberal northern cities. But this proposal should be difficult even for Republicans to reject out of hand, especially if it were accompanied by measures to better “fence” the border, mostly electronically.
This proposal would keep would-be migrants away from the border, providing some due process and decency to the process, while admitting only those who can truly meet the criteria for asylum: credible fear from circumstances in which their government is complicit. It is not pretty. But it might work.
Gregory F. Treverton was chair of the U.S. National Intelligence Council until January 2017. He is now Professor of the Practice of International Relations and Spatial Sciences at Dornsife College, University of Southern California and chair, Global TechnoPolitics Forum.