A Big Policy Change at the Border (2023)

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From The New York Times, I’m Michael Barbaro. This is “The Daily.”

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Today, for the past three years, the United States has relied on an emergency health rule to solve its immigration problems at the US-Mexico border. By the end of the week, that rule will expire. My colleague, Miriam Jordan, has been reporting on what that will mean for those on both sides of the border.

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It’s Tuesday, May 9.

Miriam, I wonder if you can walk us through precisely what’s happening at the border on Thursday.

Well at 11:59 PM Eastern time, the Biden administration is lifting an emergency health rule that has been used to prevent hundreds of thousands of migrants, many of them seeking asylum from entering the United States. That rule is called Title 42.

Right. And we’ve talked about Title 42 a lot on this show, but just explain where Title 42 comes from and what exactly it has done.

Well, Title 42 was imposed three years ago by President Trump under the premise of preventing the spread of COVID-19 to the American public. But it was essentially used as a border control tool, because, quite simply, it has allowed US border officials to very quickly turn away most migrants who show up trying to enter the United States. No hearing, no chance to ask for asylum, nothing. They’re literally expelled within minutes.

Which is not the normal situation.

Exactly. This replaced the previous system that critics sometimes label catch and release, because migrants were able to turn themselves in to Border Patrol agents, say that they wanted asylum, and then were allowed to wait in the United States for the outcome of their immigration case for years. And they might never leave.

Right. It was a system, whereby, in the crudest possible terms, if you came to the US and asked for asylum, it was a way of staying in the US for quite some time.

Yes, that is correct. Asylum doesn’t happen overnight. Applicants have to wait for years for their cases to resolve in court. The reality on the ground that that system generated became very frustrating, particularly to Republicans and the administration of Donald Trump. And that triggered a major change in policy.

And that policy change was to block asylum seekers from entering the United States using Title 42 and the health emergency rationale of the pandemic.

Correct. People from many countries who touch US soil and turn themselves in to the border patrol or were apprehended by agents were now swiftly expelled back to Mexico or placed on deportation flights back to their home countries. And obviously, the pandemic emergency has ended. So there’s no justification for keeping this policy in place.

Miriam, what does it look like at the border right now, as this emergency policy, Title 42, that really served as a message to those seeking asylum that they shouldn’t come to the border, because the old rules weren’t going to apply? What does it look like as that now ends?

Well, I guess it’s mayhem.

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We’ve seen a substantial increase in the number of migrants trying to cross into the United States ahead of this policy shift.

And we’ve also seen very large numbers of migrants amassing in border cities on the Mexican side.

With hopes of crossing after the policy sunsets.

There’s confusion. Some people think it will become more difficult to enter the US, so they want to come as soon as possible before 11:59 PM on Thursday. Many others think it’s going to become easier afterwards.

Outside a church in downtown El Paso last week, there are about 2,000 migrants who had recently managed to cross the border, sleeping on the sidewalk on these collapsed cardboard boxes. Some children were begging. Migrants were trying to figure out how they were going to get to their destinations across the country. It was really sad.

So some of the migrants who are now massing at the border think that the end of Title 42 means it’s going to be harder to get into the US for them. Others think when Title 42 expires, it’s going to be easier. So which side of this argument is right?

It’s likely to get harder, because the Biden administration sees the end of Title 42 as an opportunity to make some pretty significant changes to how asylum works. And those changes could mean that large numbers of migrants seeking asylum will no longer be able to do so at the border.

And the reason the Biden administration wants to do that is really because we have an unprecedented number of people from around the world seeking entry into the United States. It’s Russians trying to evade conscription as the war with Ukraine rages. It’s Afghans trying to escape the Taliban. It’s Venezuelans, Haitians, Cubans, Colombians, Nicaraguans, who are coming from countries whose economies have been ravaged by COVID.

And all those people that you just described, they’re coming through Mexico, correct? And almost all of them see this previous system of asylum in the US, the one that was in place before Title 42, as their best path into the United States.

Right. And the reality is that long before Title 42 was put in place, the system was just not equipped to handle this number of people applying for asylum. The system has been completely buckling. So many people apply that there’s often a five-year backlog until a case comes to completion. That’s in part, because it’s not just people who qualify for asylum applying for it. There are also people taking advantage of the system, people who know they won’t qualify still apply, because they know that they can stay in the country at least for the number of years it takes for their case to move through the system. And the result of all of this is that the system doesn’t function as a working immigration policy.

So what exactly is the Biden administration’s plan now that Title 42 is going away to change the way asylum works and to avoid this crush of people at the border?

Well, actually, the Biden administration has come up with two ways to try to discourage people from coming to the US-Mexico border. The first is legal pathways for people to avoid making their journey altogether. And the second is actually making it harder for them to get in if they come to the border.

OK. Let’s start with the first, the idea of new legal pathways that might prevent people from making this dangerous trek to the US-Mexico border. What is that plan?

Well, it’s a patchwork of programs. The first one, called humanitarian parole, enables people from poor countries, including Venezuela, Haiti, Cuba, and Nicaragua, to fly directly to the US rather than come to the border provided they have a financial sponsor in the United States that commits to receiving them.

Interesting.

That alleviates pressure from the border. Secondly, the administration recently announced that it will be setting up regional centers for people to apply for refugee status in Colombia, Guatemala, and potentially other countries. Again, that would prevent people from coming all the way to the border.

Right. In other words, seek your entry into the US long before you get to the US-Mexico border.

Precisely. And lastly, the administration unveiled a mobile app that enables migrants who are in Mexico to apply for an appointment for an interview with an immigration officer at the border. Many of these migrants would normally come to the border and turn themselves in. But the app is designed to create some order in the process, even if they’re already in Mexico having left their countries in South America or Asia.

Got it. So the message embedded in all three of these plans is there are ways of trying to get into the country that don’t require you to come to the border, and please don’t come to the border.

Exactly. But for migrants who are trying to reach the US, there are problems with all of these alternatives.

Such as?

Well, the problem with the humanitarian parole program is that many of these migrants don’t have family or friends with means in the United States to take responsibility for supporting them. The regional all centers haven’t yet been established. And it’s not clear when they would be up and running.

The mobile app has problems. It offers a very limited number of appointments. Those appointments fill up very quickly almost instantly. And the app favors people who have good internet connection. I’ve talked to migrants who say that it crashes when they finally get on, or it doesn’t accept the information they upload.

So some of these alternative means of applying to come to the US are either a work-in-progress or not in place really at all at this point.

Right. But the main problem the Biden administration is facing right now is that on top of all that, there are already tens of thousands of people amassed on the Mexican side of the border. And they’re still going to try to get in in a way that the government really doesn’t want them to try.

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We’ll be right back.

So Miriam, what’s going to happen to all these people who have done what the US government doesn’t want them to do, which is come to the border seeking asylum?

Right. So that brings us to the second set of rules that will go into effect. The first set was designed to discourage people from coming to the border altogether. The second set is designed to make it harder to get in if you come to the border.

And make it harder how once you’re at the border?

So when Title 42 lifts, to be eligible for asylum in the United States, if you pass through another country to arrive here, such as Mexico, you must have applied for asylum in that other country first and been denied there.

So to apply for asylum in the US going forward, an applicant has to have been denied asylum in another country. So for someone coming from, say, Guatemala, for example, Mexico, which is a stop along the way from Guatemala to the US, would have had to deny them asylum. And the US cannot be the first place that this person tries to immigrate.

Right. And so when Title 42 goes away and you arrive at the US border and request asylum, the key question to determine whether you’re eligible to enter the country is going to be, have you applied for asylum in another country on the way here like you’re supposed to? And if you haven’t, if everything goes according to this new plan, you would be arrested, processed, and quickly deported.

So by making it so hard to ever get to the point where you can apply for asylum, by creating all these hoops to jump through, it would really seem like the Biden administration in this moment is going a long way toward effectively eliminating asylum. Is that right?

Well, it may look that way. But there are some very notable exceptions that mean that is not the case.

And what are those?

For one, Mexicans who come to the border do not pass through another country on their way to the United States. And there are more than 200,000 internally displaced Mexicans who would like to seek asylum in the United States, according to independent estimates.

Got it. So this policy won’t really apply to them.

Correct. Then there are families with young children. Under the Biden administration, the United States does not detain families. It typically allows them into the country after processing them at the border. The reason for that is that, technically, kids aren’t supposed to be detained for more than a few days. And every time a president has tried to find an alternative other than just letting families in, whether it be separating parents and kids or detaining them all together, it’s drawn ferocious criticism.

Right. As President Trump learned when he tried to separate migrant families, children from their parents.

Correct. So if a family shows up at the border, the US is very likely to allow them into the country after processing them. And finally, there’s one more exception. Individuals who come from countries with which the United States does not have good relations, such as Russia, making it almost impossible to put them on deportation planes back to where they came from.

Got it. So Miriam, in all, how many people are we talking about who would fit into one of these categories of exceptions to the Biden administration’s plan to discourage people from coming to the border to seek asylum?

Well, altogether we could have hundreds of thousands of people who are still let in, which is problematic to the Biden administration’s intentions, because it sends a mixed message to potential migrants.

Right. The message being, on the one hand, we’re telling you don’t come to the border, don’t come to the border, don’t come to the border. On the other hand, we’re saying, well, you can come to the border. And you can come to the border. And that gets messy.

Exactly. And let’s not forget that there’s a very sophisticated smuggling network out there that uses these mixed messages to convince would-be clients that entry to the United States is virtually guaranteed.

So Miriam, this conversation is ending in a place I hadn’t quite expected it to, because we started this conversation with the Biden administration resolved to replace Title 42 with a new system that discourage people from heading to the US-Mexico border to seek asylum. And yet the first part of the plan is in various stages of not quite readiness or are kind of buggy. And therefore, people are still going to come to the border.

And then the second part has so many exceptions that it won’t do a ton of work to discourage all that many people. So is this going to do what the Biden administration hopes it’s going to do, which is signal to people don’t come to the border?

Yeah. Michael, I think we’re in this kind of strange position. A lot of advocates are very upset about the new asylum restrictions. They regard them as cruel and a violation of US commitment to being a safe haven for those seeking refuge. But the reality is that the nature of what the Biden administration is seeking to do leaves plenty of confusion and hope. So migrants will continue to come to the border, because they are aware that there is a chance that they will make it into the country.

So the long and short of this is that if the Biden administration hoped that this new replacement for Title 42 would end these painful scenes of people massing at the border trying to get in, that is not what’s likely to happen any time soon.

That’s right, because there’s so many people waiting on the other side of the border as we speak to enter the United States. And they’re not going to turn around and retrace their journey from Afghanistan or from Venezuela once they’ve gotten so close.

So Miriam, this doesn’t really seem like a foolproof plan from the Biden administration. And I wonder why this is the best that it can do. And I ask that very mindful that President Biden is now officially running for reelection against Republicans, including Donald Trump, who are very, very focused on the issue of the border.

Well, the Biden administration has been trying to use its executive authority to address this intractable problem. We have masses of people who want to come to the United States to rebuild their lives. But ultimately, any real solution has to come out of Congress, because our immigration system is broken.

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We’ve had this policy for three years that’s been used to sort of hold the line. But Congress is responsible for immigration legislation. And we know that immigration has been a political nonstarter, because the Republicans and Democrats are so polarized on this issue. So what you end up with is a president with this hot potato in his hands trying to come up with solutions.

And these solutions are hodgepodge that no one is happy with, because, ultimately, they aren’t going to stop people from coming to the border.

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Well, Miriam, thank you very much. We appreciate it.

Thank you so much for having me.

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We’ll be right back.

Here’s what else you need to know today. On Monday, after a two-week civil trial, a jury in Manhattan will now decide whether former President Donald Trump is guilty of battery and defamation, stemming from allegations that he raped a woman in the 1990S. That woman, E. Jean Carroll, accused Trump of sexually assaulting her in a Department store dressing room. If found liable, Trump may be forced to pay financial damages and retract statements that he’s made, mocking both Carroll and her claims.

And officials tell The Washington Post that the gunman who killed eight people at a mall in Texas over the weekend was briefly enlisted in the US Army but was discharged over a mental health condition. The shooter’s motive remains unclear. But police are examining online posts in which the shooter expressed hate towards women and Black people. The rampage was the 199th mass shooting in the US since the start of the year.

Today’s episode was produced by Clare Toeniskoetter, Nina Feldman, and Luke Vander Ploeg, with help from Carlos Prieto. It was edited by MJ Davis Lin, with help from Patricia Willens and Marc Georges, contains original music by Marion Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly. Special thanks to Natalie Kitroeff, Michael Shear, and Eileen Sullivan.

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That’s it for “The Daily.” I’m Michael Barbaro. See you tomorrow.