The Post-Title 42 Surge in Border Traffic Hasn’t Happened—Yet.

Congressional reform is imperative. Members of Congress will actually have to do their jobs.

Venezuelan migrants cross the Rio Grande to seek asylum in the U.S., November 2022 (Photo: David Peinado Romero, Shutterstock)

The “Title 42” COVID era has come to an end at the U.S. border. Title 42, a body of federal public health laws, contained a provision that was invoked in March 2020 by the Centers for Disease Control and Prevention under then-President Donald Trump and that allowed the Trump and Biden administrations to set aside standard provisions of immigration law and summarily expel, a total of almost 3 million times over the past three years, immigrants attempting to cross the border. Title 42’s ostensible purpose was to control the spread of the coronavirus, but it also enabled federal authorities to avoid granting time-consuming hearings in overburdened U.S. immigration courts to hundreds of thousands of migrants who might otherwise have requested asylum.

The termination of this Title 42 process two weeks ago was widely expected to lead to a surge of new migrants at the U.S.-Mexico border. President Joe Biden predicted, “It’s going to be chaotic for a little while” and even took the unusual step of deploying active-duty troops to help immigration enforcement officials there. While tens of thousands of migrants did cross the border in the days before the end of the Title 42 period, the projected post-Title 42 upsurge hasn’t occurred (so far).

Regardless, ad hoc presidential actions like Title 42 aren’t a long-term solution to the persistent and growing problems with U.S. immigration policy. Congress must act to address the underlying failures—and to overcome the strong incentives it faces not to.

The Border Dog That Didn’t Bark … Is Clearing Its Throat

In a sense, the assumption that the end of Title 42 would lead to chaos at the border was understandable. Title 42 prevented migrants from seeking asylum, and its termination was widely thought to reopen that opportunity, creating new incentives for people to try. Moreover, attempted border crossings were already high under Title 42.

But in fact, the number of attempted border crossings over the past few years was actually inflated by Title 42’s catch-and-release style expulsions, which didn’t penalize people for having tried to cross the border illegally or for trying again. In addition, this “no consequences” policy has ended with Title 42, and the Biden administration has successfully exploited the new uncertainty about potential border penalties by launching a government communications campaign throughout Mexico and Central and South America telling would-be immigrants that under the administration’s newly drafted immigration rules, they would be deported and forfeit the chance to apply for U.S. asylum in the future if they didn’t first apply (and get denied) in a country they traveled through on their journey. That message seems to have gotten through.

For now, that is. We’ve seen this sort of “pause” in migration before when border policies have changed, but after a couple of months of lower arrivals, migration picks up again and keeps rising. This time is likely to be the same. Tens of thousands of would-be migrants remain in northern Mexico and more are arriving in Mexico daily, exceeding shelter capacity and even camping out near ports of entry. Many of them are willing to wait for their chance to enter legally at those ports by applying for one of the 1,000 appointments per day—borderwide—via the buggy CBP One app. Still others are hoping for one of the 30,000 monthly humanitarian parole slots available for migrants from Cuba, Haiti, Venezuela or Nicaragua who have found U.S. sponsors.

But here’s the thing: Demand for these legal avenues seriously outstrips the supply. And other “lawful pathways” promised by the Biden administration aren’t yet up and running, including the proposed regional processing centers in Central and South America where migrants can learn whether they qualify for one of the legal options above or the expanded family reunification parole programs. For the migrants camped at the border, many of whom have already risked their lives repeatedly to reach the border, the risk of crossing illegally may seem worth taking. Smugglers are already encouraging them.

Masses—and Masses and Masses—Yearning to Breathe Free

This points to the fundamental problem—one generally ignored. We no longer live in a world where the people most likely to enter the U.S. illegally are adult Mexican males seeking seasonal employment, and where the carrot-and-stick of legal seasonal work visas coupled with an enhanced enforcement regime might plausibly deter illegal entry.

Instead, we live in an era of political and economic upheaval, with its accompanying violence and crime, in countries throughout world. The U.N. High Commissioner for Refugees states that there are more displaced people now than at any time since record-keeping began. A lot of these countries are in our own hemisphere, and people are desperate to escape. They are many, and they are determined—families, and even children traveling alone, so driven by circumstance that they will walk thousands of miles, cross jungles and rivers, surviving violence and predatory smugglers, sustained only by hope and prayer. They come to America because they see it as a place of safety, stability and opportunity. They firmly believe that returning to the country they left would mean death. And they may understandably believe their desperation qualifies them for asylum here, unaware that their situation fails to meet the U.S. government’s technical legal requirements.

These refugees are not deterred by border enforcement. Physical barriers are not going to work. Even President Trump’s border wall, in the places it was built, did not stop migrants from simply waiting at the wall for the U.S. Border Patrol to take them into custody (the wall is built entirely on U.S. soil, so even standing on the outside of it, they are the responsibility of the Border Patrol). Nor did it stop smugglers from cutting holes in the wall or from convincing migrants to climb the 30-foot pillars and then drop down the other side, risking life and limb.

Even these smugglers have changed. Because of the sheer number of migrants, the “enablers” who help them are no longer family members or “mom and pop” outfits, but professional operations that are frequently part of larger transnational criminal organizations that see smuggling migrants as a billion-dollar line of business. For a price, these outfits have resources for directing migrants to avoid the border enforcement of each of the countries along their trek.

Taken together with other, more traditional migrants, the number of people trying to cross the border has simply overwhelmed our border personnel and facilities, asylum officers, immigration courts and deportation apparatus. This is the reason that every president since 2014, starting with Barack Obama, has struggled to manage the border, and why, despite the lack of an immediate surge after the lifting of Title 42, it’s not likely that we’ve seen the last of this new reality of migration at the border.

Immigration: It’s More Than the Southern Border

Our current immigration system can’t handle this. Remember that it is legal to apply for asylum even if you enter illegally; the law specifically allows for this. And as suggested above, many migrants believe they truly qualify for asylum. Our system then has to listen to their claims and decide whether to grant them.

These cases are often very complex, and most migrants don’t have lawyers to help them. There also aren’t enough judges and asylum officers, and there aren’t enough places to house migrants while their case is adjudicated. So they are released into the country to fend for themselves, with no money and no legal way to work for most of the years it will take the system to decide their case. The billions we’ve spent on enforcement isn’t matched by money to beef up the rest of the system that handles the cases after the initial arrest and booking.

And while we’re spending at least $17 billion annually on border security, the rest of our legal immigration system, which is funded at less than one-fifth of that, is suffering: Green cards, which allow foreign citizens to work and live here permanently, aren’t being handed out because the processing centers are backlogged. Even people on temporary visas who are working here legally sometimes have to leave their jobs or even leave the country, waiting months for their work authorization to be extended. Children of immigrants waiting in line for green cards face deportation as they reach adult age because their parents’ applications for permanent residence took all of the children’s young lives and still aren’t resolved. Businesses move employees overseas because they can’t get their visas or work authorizations. Consulates overseas make people wanting to study in the United States wait a year just to get an appointment for a visa.  It’s no wonder that the poor and desperate are asking for asylum; it’s the only legal avenue available to them.

Still, there are policy solutions, and it’s not just about money. Decades of efforts at major reforms of the system have developed a good understanding among a small cadre of legislators, advocates and policy people of which ideas can gain majority support: expanding work visas; letting the spouses and children of green card holders join their family member in the U.S. without being subject to annual caps; allowing children to migrate with their parents, even after reaching adulthood; funding adjudications and immigration courts sufficiently to manage both incoming cases and eliminate the backlog; and granting those families who have lived peacefully in the United States without documentation a way to gain legal recognition. A bipartisan bill just introduced in Congress on Tuesday, The Dignity Act of 2023, incorporates some of these ideas.

Of course, any deal will have to include border enforcement, but this is the area where the past consensus is no longer good enough. Just using enforcement as a deterrent to illegal crossings was working pretty well until 2014, but since then, as discussed above, the border—and migration itself—changed dramatically.

The Trump administration believed tripling down on deterrence would work, but even after separating kids from their parents and sending people back to Mexico to await their immigration hearings, the president’s efforts didn’t really significantly decrease migration until COVID did it for him by pretty much halting travel around the world. Even after Title 42 was invoked in March 2020, migration at the border was increasing again by May 2020. The Biden administration’s continuation of Title 42 failed to control the border as well, despite the administration’s creating parole programs allowing more migrants to come to the U.S. legally, and despite its working with Mexico to receive immigrants expelled under Title 42.

Fences of Policy and Politics

The Biden administration’s combination of new pathways for legal immigration and new restrictions on border asylum may help over time, but already they are facing litigation and condemnation from both sides of the aisle, threatening once again to render border policy chaotic. This occurs against the backdrop of a Congress that since 2006, when it passed the Secure Fence Act, has passed no major immigration reforms—despite the tremendous surge in would-be immigrants since 2014, despite bipartisan attempts to pass legislation under both Republican and Democratic administrations, and despite several eras in which one party controlled the House, Senate and White House.

Why?

Part of the challenge is immigration policy itself. Immigration is an especially complex area of the law. Courts have likened it only to tax law in its complexity, and few members of Congress have the time or inclination to become experts in the area. Finding staff with the needed expertise is also hard.

And because of this complexity, drafting reforms is not as simple as changing one or two sections of the statute; the various parts of the law are too interconnected. In fact, many of us would say the entire basic statute could use a rewrite. That statute, the Immigration and Nationality Act, originally enacted in 1952, has been amended so many times that it’s hard for even the justices of the Supreme Court to figure out how to interpret the law consistently.

Another challenge is that it can be difficult to anticipate how specific legislative changes will actually play out. For example, Congress believed that the sanctions regime it passed in 1986 would cut off the jobs magnet for illegal immigration by requiring employers to check if their new hires were authorized to work in the U.S. But immigration hawks and immigration doves were both surprised by the speed with which false documents and identities were forged that could fool even conscientious employers. Mandated fines on employers for employing migrants in the country illegally were relatively few and made little dent in the overall employment of unauthorized workers.

But far and away the biggest reason Congress hasn’t enacted major changes to immigration is that the parties have decided that they can’t actually negotiate with each other in good faith on the issue. Since the days of past bipartisan bills, the parties have become much more homogenized on policy, and there are fewer moderate “deal makers” available to work across the aisle. Further, the voter bases of each party have taken up diametrically opposite views of what we should do on immigration and the border: “build the wall” or “stop border militarization;” “abolish ICE” or “detain everyone”; “increase immigration” or “immigration moratorium.” These are irreconcilable positions, and because we are in an era of mostly divided government and very thin majorities, members of Congress espousing these positions can hold things hostage.

That’s the policy side. But the political side is worse. Hardline conservatives and progressives in the House and Senate are not making it easier for party leaders to come to agreement on policy solutions. These members continually try to hold their party to uncompromising positions, and they, together with the many political operatives whose job it is to win elections, not to legislate, believe that their views, if espoused unequivocally by their candidates, will win elections, keep or gain them the majority in Congress, and/or win the White House. This is more important to their livelihoods than agreeing on a solution to our deteriorating immigration system. As a result, it’s as if congressional candidates are intent on winning the job interview, but not on doing the job itself.

Congressional Challenges—and Congressional Responsibility

So it’s true that legislating necessary immigration reforms will be tough work. Indeed, political pundits and many immigration advocates like to seize on this idea and point out that the last time Congress passed “immigration reform” was the Immigration Reform and Control Act of 1986 under President Reagan. They imply that Congress has become inherently incapable of acting, and that expecting our representatives to make hard legislative decisions is too much to ask.

They’re wrong on the facts alone. Since 1986, Congress has passed several major pieces of immigration reform, mostly on a bipartisan basis. There was the Immigration Act of 1990, signed by President George H.W. Bush, which, among other things, expanded legal immigration, created the current green card categories for immigrants residing legally in the U.S., and gave us the H-1B, H-2A and H-2B visas that are our largest guest worker programs. In 1996, under President Clinton, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which, as part of an era of “tough on crime” legislation, created bars on future legal immigration for immigrants who overstay their visas, created expedited removal authority, and restricted the ability of federal judges to review the decisions of immigration courts.

And after 9/11, Congress passed several major immigration reforms, including the Enhanced Border Security and Visa Entry Reform Act in 2002, which created new information checks and vetting and biometric requirements for immigrants and visitors on entry and exit. That same year Congress passed the Homeland Security Act, completely reforming the government agencies responsible for immigration, while 2006 saw the passage of the Secure Fence Act, which required 700 miles of border fencing and stipulated that the government prevent or interdict 100% of all unlawful crossings at the border.

True, this last requirement was simply unrealistic. Moreover, all the bills discussed above contained flaws of various kinds. As a practical matter, even good immigration reforms will be outstripped over time by changing global economic and political realities.

But these difficulties, failures and challenges aren’t an excuse for our representatives to give up; rather, the reverse: Immigration policy requires legislators to make regular course corrections and keep their hands on the wheel. Past presidents and Congresses, both Republican and Democratic, have tried to do this work, and our current legislators need to as well. They have a responsibility to hundreds of millions of Americans, and that responsibility is simple: to do their job.