The gathering storm around Title 42

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END GAME — At 11:59 tonight, Title 42 — the Covid-era emergency action to quickly expel migrants from the United States — will lapse, leading to the likely influx of thousands of asylum-seekers along the U.S.-Mexico border.

It has all the elements of a humanitarian crisis — and a political one as well.

Many of these potential migrants, already expelled under Title 42, have been living in border towns in Mexico, subjected to consistent human rights abuses including kidnapping, rape and other violent attacks.

So as Title 42 lapses, some plan to take their chances in America, even as strict border controls — including Title 8, which can carry the potential of prosecution and a five-year ban from the U.S. — remain in place. The most recent Customs and Border Protection data cited 206,239 encounters at the southern border in November 2022, a high that hasn’t been matched in over 20 years.

President Joe Biden is desperate to keep the situation from spinning out of control. The Pentagon announced that it would temporarily send 1,500 additional troops to the border, and his administration announced new rules this week that would blanket deny asylum to migrants who haven’t first either applied online or seeked protection in another country they passed through. The regulations are likely to face legal challenges and have some immigration activists and lawmakers concerned that Biden is parroting former President Donald Trump’s harsh immigration penalties.

It’s added up to very few people happy with Biden’s handling of the situation thus far — only 26 percent of Americans said they approved of Biden’s handling of immigration in a new poll from Reuters/Ipsos. The weeks to come could serve as a defining moment for Biden’s reelection chances; Republicans have already seized on his weakness in the area, heckling him about his immigration comments at the State of the Union and employing messaging that argues his “border crisis is the worst in American history.”

If the current moment spirals out of control, Biden could watch his approval ratings tumble further, something he can ill afford as he ramps up his bid for a second term. To get a better sense of what the end of Title 42 means for immigration policy — and how the Biden administration’s plan affects the situation at the U.S.-Mexico border — Nightly spoke with Muzaffar Chishti, a senior fellow at the Migration Policy Institute, a think tank that provides analysis on international migration trends. This interview has been edited.

What were the specific intentions of Title 42, and what will happen now that it’s expiring?

Title 42 basically was intended to sort of expel everyone at the border. We don’t even have to do a hearing, we don’t even have to create a record, just push everyone out. And frankly today, Title 42 exists mostly as a talking point, both for the right and the left. Because by now, there are so many exemptions to Title 42 that in December of last year, only 20 percent of people were subject to Title 42. So it has kind of lost its relevance. Under Title 42, there was no place for treating people under asylum, which is why it had become so important. So after Title 42 we will be back to square one, which is Title 8.

The backlog for immigration cases has stretched to 7 years. So the backlog has become a magnet for unauthorized migration. People were just showing up and asking for asylum, absolutely sure that they would not get a hearing for 7 years, during which time they would just stay here. And so that became a pull factor. The administration is trying to move us away from that factor.

How does Biden’s new immigration policy proposal compare to Trump-era immigration reforms?

So there were two policies announced on January 1, and it’s somewhat connected but different. The first one was to offer up parole possibilities to nationals of the countries. And if you look at the combined, this is Cuba, Haiti, Nicaragua and Venezuelans. They were picked for this special relief because they were four of the largest nationality groups who had come to the border in the last few years. The second component issued that day says “look, we are going to have a new regime at the southern border going forward,” and this will principally be in place of Title 42. They’re preparing for what they expect to be large flows of people coming in with the expiration of Title 42. They have concluded that the last two years have been an error of disorderly migration at the border, if not chaotic, that 2.4 million people came to the border. The highest in history. Both the optics and the reality of that are no longer sustainable.

What they want to do is they want to incentivize people coming in an orderly way to the port of entry, and disincentivize people from coming between borders in an irregular manner. What they’ve done is say “look, if you’ve come between the ports of entry in an unauthorized way, we will presume you’re not eligible for asylum if you come to our transit country and then apply there.” That’s what advocates have called the same as Trump policies, because Trump had imposed a transit country ban. But that is where the comparison ends, there was a transit country ban under Trump but it’s very different. It’s not a total ban, we are not imposing the transit country rule at the port of entry.

Do you think that there’s any possibility in the near future that immigration policy will revert back to pre-Covid policies?

The levels of legal immigration have reached what we had from 2000 to 2016. That’s for sure. We reached a record number of nationalizations last year, so things are healing. Title 42 was clearly a glaring aberration in that. What has been different in the last two years is that, because of the record number of arrivals at the border, we had 2.4 million people come in last year, both the scale and the diversity of nationalities coming to the border was radically different in the last few years than it was pre-Trump and pre-pandemic. Five years ago, border crossings were mostly Mexican single men. Indeed, our policies, our resources, our infrastructure was built for that challenge. Now that reality has totally changed. Not only are the numbers high, but the numbers are increasingly non-Mexican, non-Central Americans. Mexico has become the staging ground for the immigrants from all parts of the world trying to get to the U.S. quickly. And families have become the dominant part. So you can’t have the same policies.

Welcome to POLITICO Nightly. Reach out with news, tips and ideas at [email protected]. Or contact tonight’s author at [email protected] or on Twitter at @katherinealong.

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