The Dispatch Podcast - Ripping Off the Band-Aid of Title 42

Episode Date: December 22, 2022

"Title 42," the pandemic-era immigration restriction, was slated to expire December 21, until the Supreme Court stepped in. Now, the Biden administration and conservatives are in loggerheads on what to do next. Esther sits down with Aaron Reichlin-Melnick, the Policy Director at American Immigration Council to discuss the historical context behind Title 42, its impact on border crossings, and what we might expect if it goes away. Show Notes: -Aaron Reichlin-Melnick’s American Immigration Council (AIC) profile -AIC's Guide to Expulsions at the Border -Docket filings related to the Application for Emergency Stay   Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch podcast. I'm your host, Esther Eaton. I'm deputy editor of the morning dispatch, and on today's episode, we are doing an explainer of Title 42, which is a border policy that's been in use during the pandemic, talking about what it is, what impact it's had and what could happen if and when it goes away. We're talking with Aaron Reiklin Melnick, who is policy director at the American Immigration Council. He was formerly an immigration lawyer with the Legal Aid Society in New York City, and he brings just a wealth of knowledge about immigration law. Thank you, Aaron, for joining us. Thanks for having me. So we hear about Title 42 a lot. You know, it's in a lot of headlines right now. But for someone who's just unfamiliar with exactly what it is, tell me about where it comes from. and why it originally got put into place. The most important thing to understand about Title 42 is that it's not an immigration law.

It's a public health law. It is actually one of the oldest public health laws we have on the books. It was actually first passed by Congress in 1893, 125 years ago in the era of steamships. And the goal of the law at the time, most scholars agree, was to give the U.S. government authority to turn away ships in an era of cholera of. and yellow fever when the most likely disease vector was a ship or a train coming to the U.S. border that had to be stopped before anyone was allowed in. This law sat pretty much dormant on the books for 125 years until March of 2020 when the Trump administration tapped the law

and created the Title 42 policy that we have in effect now. That policy said that migrants were posing a threat of spreading COVID-19 into the United States and that as a result, U.S. border officials should turn them away, if possible, sending them back to a country that was willing to accept them rather than allow them into the United States where they can access the asylum process and might have to spend time in detention facilities at the border. And that is the policy that's been in effect for the last two and a half years, even though by this point, the threat of migrants introducing COVID-19 into the United States. is effectively zero. The disease is here. It's been here for a very long time. And by this point,

no one is even pretending that Title 42 is about public health anymore. Right. So clearly the purpose of why it has stuck around has shifted. It's mostly used at the southern border. So what does it mean for someone who, you know, shows up wanting to cross? Let's say you're a single adult. What does Title 42 mean for you? So because Title 42 is not an immigration law, it has led to this sort of bizarre creation of a brand new thing called an expulsion. Normally, under U.S. immigration law, when a person comes to the border and crosses, if they're not entitled to seek asylum or otherwise are unable to establish a reason why they should be allowed in, they get issued what's known as an order of deportation. And that's a pretty serious consequence, because if you ever come back to the U.S. Mexico

border or in any border, for that matter, with an order of deportation, and you cross again without permission, you can be prosecuted for felony illegal re-entry after removal. But under Title 42, what happens when a person comes to the border and crosses, for example, walks across the Rio Grande River? If that person is from a country that can be expelled to Mexico, then they will likely be expelled to Mexico without any right to seek asylum. But when the pandemic started, Mexico said that they would accept only four nationalities for expulsions, Mexicans, Guatemalans, Honduran, and Salvadorans. As of October 12th, 2022, Mexico also accept people from Venezuela. So if you are from one of those five countries, Mexico, Honduras, Guatemala, El Salvador, or Venezuela,

and you cross the southern border without permission, then the most likely outcome is that a border official will very rapidly process you, take your fingerprints, get your name down, and then stick you on a bus to be sent right back to Mexico. Now, if you don't come from one of those five countries and the United States government doesn't have a plane that's available to expel you by air to your home country, and I will note many countries don't accept Title 42 expulsions, then they have to process you under normal immigration law, the law that's been in effect for the last 25 years. And that is the law that also includes a right to ask for humanitarian protections like asylum. And this has really led to a sort of dual-track nationality-based system at the border. People from the countries that can be expelled to

Mexico, by and large are expelled to Mexico, with the majority of those nationalities over the last two and a half years being unable to access the asylum process in the United States. Meanwhile, pretty much everybody else, with some few exceptions, for example, about a third of all Haitian nationals have been expelled by air to Haiti. So pretty much anyone else but in those rare circumstances, Haitians and in a couple of other circumstances, we've seen Ecuadorans expelled and a few Cubans. But if you can't be expelled to Mexico, by and large, you can't be expelled at all. And so we've had those five nationalities get expelled to Mexico and pretty much everyone else gets to access the same normal immigration law system that existed before the pandemic. And let me tell

you, if this sounds confusing to you, think how confusing it is to a migrant on the ground who's trying to work out what the actual rules are. Yeah, absolutely. How is it shifted over time? Because we've had sort of over the last few years that Title 42 has been in effect, we've also had some shifts in who is trying to come and from where. So talk to me about how the numbers of Title 42 expulsions have shifted over time and why that's been happening. There's a misimpression that many people have about what things looked like when President Biden took office. And in fact, in the first nine months of Title 42 being in effect at the U.S.-Mexico border under the Trump administration, we saw escalating numbers of people crossing the border and ending up being subject to Title 42.

That's because one of the consequences of Title 42 being that you don't actually get a formal deportation order means that people who are getting expelled to Mexico, can cross the border two, three, four, five, six dozens of times knowing that if they get caught, the most likely outcome is not a deportation order and prosecution, but simply a trip back to Mexico where they can try again. So by the time President Biden took off as border apprehensions were already skyrocketing. And they were skyrocketing among the group that Title 42 is applied to the most, which is single adults from Mexico, Guatemala, Honduras, and El Salvador, the group the policy was pretty much designed to target.

They, nationals of those groups basically found that Title 42 was for them pretty much a net benefit. It meant that they could just keep crossing over and over again until they eventually made it through. Then after President Biden took over, we started seeing an increase again in asylum seekers, which had temporarily halted in the last really eight to nine months of the Trump administration. We really hadn't seen very many asylum seekers coming in large part because it seemed that they wanted to wait and see what the new administration was going to do. And what the Biden administration quickly found is that a lot of the asylum seekers couldn't actually be expelled.

That's because they started coming from countries other than those that could be expelled to Mexico. And we've seen a major increase in the last year in particular of nationals of Cuba, Venezuela, and Nicaragua. until Mexico agreed to accept Venezuelan nationals in October, Venezuelans could not be expelled to Mexico, and the country of Venezuela itself wouldn't take them. Same for Cuba, same for Nicaragua. And the end result is that the U.S. government had basically no option but to let people from those countries enter the country and seek asylum,

because there was no other country willing to accept them. This changing demographics has really posed significant, challenges to the Biden administration, which despite the rhetoric that some on the right claim about open borders has repeatedly tried to crack down at the border and negotiate new policies with Mexico to allow them to take more people. But Mexico hasn't been willing to accept the sweeping numbers of people that the Biden administration wants them to take. So there's been a lot of legal back and forth about whether Title 42 should go away or not. And so I'm curious, you know, how would you summarize sort of the best arguments for keeping

it and the best arguments for getting rid of it? The proponents of Title 42 point to the fact that it is still being used on tens of thousands of people a month and say, if we get rid of this, then we will have nothing in effect to stop migrants from coming. The problem with that argument is that Title 42 itself has led to an inflated number of people crossing the border. That's because of the repeat crossing issue that I mentioned before. When in 2019, under the Trump administration, when we saw hundreds of thousands of Central American families seeking asylum, that year, very few people were crossing the border more than once. In 2019, just 7% of people encountered by the border patrol had crossed the border

more than once in the past 12 months. After Title 42 went into effect, that quadrupled to 27%. So now one in four border encounters is a person on their second or higher failed encounter. And in fact, there have been more than 1.25 million repeat encounters at the border since Title 42 went into effect. That is, of course, a very significant amount and has really driven. driven up the perception that there are these historic numbers of people coming to the border, even though there are, in fact, very large numbers of people coming to the border.

But Title 42 being in effect has essentially made those numbers look a lot higher. And the other thing to note is that once Title 42 goes away, that allows the U.S. government to start using these harsher tactics, like criminal prosecutions, more orders of deportation, and other potential asylum bans that we hear the administration is attempting to put into effect. So it's not that if Title 42 goes away, there's nothing, but it's more that there's a lot of people who believe that without Title 42, there is going to be significant chaos in the initial months, and that the only way to stop that is to keep Title 42 in effect. So if Title 42 goes away, which I mean it was scheduled to do until we had another twist and turn

in the court system. But, you know, if it goes away tomorrow, we had El Paso this week declaring a state of emergency, looking to expand their shelter. to accept extra people. I mean, what kind of on the ground impact would you expect to see immediately after it went away? Yeah. As with every time the U.S. government changes policies. Smugglers sell the message that now is the time to come.

This is an infamous, you know, phenomenon at the border. When the Trump administration would change policies, either positive or negative, smugglers would say, okay, rules are getting harser. You need to come now before they get worse. And when the policies get better, the smugglers say, all right, rules are getting easier. You need to come now before they get harsher. So not surprisingly, when news got out, the Title 42 was going to be lifted in late December. That caused more people to come to the border, especially because we got that date about five weeks early,

which gave people more than a month to make their way to the U.S.-Mexico border, which is part of the reason that we're already seeing an increase in people crossing the border, even though Title 42 is still in effect and hasn't gone away. But this has posed a pretty significant challenge to border communities, and there's no doubt about it. You know, I was in El Paso myself recently, and what's notable there is that I talk to a lot of shelter providers, and every one of them admitted that they are stressed. But everyone also said, this is something we feel we can do. We just need more support for the federal government. You know, the mayor of El Paso did declare an emergency, but it's really really,

notable that the emergency was about the health and safety of the asylum seekers and the migrants, not the people of El Paso themselves. The fear was that they were going to freeze to death overnight because a lot of them were having to sleep on the pavement because there wasn't enough space for them in various shelters. And so what they did is declare emergencies so that they could tap some additional resources and make sure that nobody essentially froze to death. And these are the concerns that a lot of people at the border are having, the strain on local shelter networks and the fear that we might have another 2019 when multiple children died in Border Patrol custody due to overcrowding. And I think that fear of what happened in 2019 has led the Biden

administration to focus a lot more than the previous administration on what they call decompression, getting people out of Border Patrol facilities as quickly as possible. So that's the concern about the short term, is that maybe there won't be shelter to capacity, especially as it's cold. What would you expect to see over the next few months after the end of Title 42? So in the short term, we do expect more migrants to come to the border, especially because smugglers have been sending the message that now is the time. The real question is what happens in the medium and long term. Because the Biden administration has said they're going to start cracking down more harshly using normal immigration laws when Title 42 goes away,

we could actually see a reduction in the overall number of border crossings, especially if the switch back to these harsher policies allows the Biden administration to cut down on the number of people who are crossing the border repeatedly. If they actually manage to do that, for example, we should also see fewer people who are the so-called gotaways because a lot of those are the people who are trying three, four, five times until they eventually make it through. And one easy example of why this is going to happen is what will happen to single adults from, say, Honduras.

Today, a single adult from Honduras who crosses the border is almost certainly, if caught, going to be sent right back to Mexico, where, because they're already at the border, they're already thousands of miles away from home, their biggest incentive then is going to be to try again and keep trying until they run out of money. But if the U.S. government takes that person and deportes them all the way back to Honduras, then it's another 2,000-mile journey to make it all the way back to the U.S.-Mexico border for a second try. And so once these harsher policies involving people actually being deported to their home countries rather than just sent back to Mexico go into effect, we should actually expect to see a reduction in people crossing. on the other hand the message that people have gotten is that it is easier to seek asylum now than it has been in the past even though the actual laws haven't changed and we are continuing to see the collapse of multiple nations south of the u.s mexico border as well as in the caribbean nicaragua for example has been hemorrhaging refugees over the last 18 months after the ortega regime cracked down in that country significantly last summer in summer 20th 21. Costa Rica, for example, to the south of Nicaragua, has been receiving hundreds of thousands of Nicaraguan refugees, and right now, about 4% of the entire country's population is Nicaraguan refugees, which the equivalent in the U.S. would be 13 million refugees. Similarly, Venezuelans have been leaving in droves, and about a quarter of the entire population of Venezuela has left in the last

decade. And in Haiti, we are seeing the country effectively collapsed. The government has lost nearly all power. Gangs rule the streets. And people are fleeing Haiti whatever way they can because the situation has become so dire. So in this sort of global, especially Western hemisphere refugee crisis that we're seeing ourselves in, it's not a surprise that a lot of people are coming to the United States. And that's especially true because a lot of these people are coming to the United States because we are the ones calling their governments autocratic, sanctioning their governments and saying we are a country of freedom. And it's not a surprise that people say, well, the United States has put itself out there as a beacon of freedom. We should go

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and that Congress needs to do something, which, you know, not to let Congress off the hook. But what options does the administration have? Are there things that they could be doing both to prepare for the end of Title 42 and then afterwards that could improve? how we handle this continuing flow of people? Yeah, so I'm sympathetic in some ways to the Biden administrations claim that their hands are tied because in large part on a number of aspects, their hands really are tied. U.S. asylum and humanitarian protection laws haven't changed in 25 years. The last time Congress made any major changes to the asylum system was 1996.

And the last time we made any changes to the legal immigration system that could potentially provide alternate pathways for people to come here was 1990. November 1990, about a month before the first website ever went online. So it's pre-Worldwide web, is our legal immigration system. And so when the Biden administration says their hands are tied, when we talk about things like Cubans and Nicaraguans and Venezuelans, that has largely been true. The solution there is diplomatic. Cuba for 50 years has not accepted deportations, except in a handful of circumstances, and now Nicaragua and Venezuela are doing the same to us because we are sanctioning them. So this is pretty much the only weapon that they have against us is to say, well, okay, if you sanction us, then we are just not going to let you deport anyone here. And then when refugees come to our borders or economic migrants or what have you, the United States has very few options to deal with them. One of those options that the Republicans have often called on the Biden administration to use is the Remain in Mexico program. For various reasons, I have long argued that this program was a disaster.

It created a Kafka-esque system of border courts in which people had to literally run a gauntlet of kidnappers just to make it to the border to have a chance to have their case heard. And it made it almost impossible for people to get a lawyer and it essentially took the rate at which people won asylum from about 15% down to less than 1%, which is a really good sign that it was not doing what the Trump administration claims and deterring frivolous claims, it was just deterring all claims regardless of merit.

But even, you know, for all the calls of bringing Remainan Mexico back, the realities is that the Remain in Mexico program was relatively minor compared to what's going on now with Title 42. More people are expelled back to Mexico under Title 42 in any given month now than we're, were sent back to Mexico during the entire duration of the Remainan in Mexico program. And so to the extent that even if they are correct that Remain in Mexico acted as a deterrent, something that there is a significant debate about, today the situation is very different

than it was in 2019 when the program began. And part of that is the situation in Mexico. In 2019, the President Trump threatened Mexico with 25% tariffs if they didn't let him expand, remain in Mexico significantly. But in a time of high inflation, if the United States imposed 25% in tariffs on Mexico, our economy would collapse. It's simply not possible. And so Mexico has no interest whatsoever in letting the program go back anywhere near to the level it was under the Trump administration. So it's sort of, even if you were to set aside all the serious humanitarian concerns about the program, I don't think Mexico would even let us do it. So what does

that leave, that leaves resources, resources internally for processing asylum seekers much more rapidly. Right now, it takes about five to six years for a lot of cases, though some people get fast-tracked through a system that takes them about a year. And if you are going into this five or six-year backlog, the reality is that you are just not going to be deported or you're not going to win your case for many, many years. And that does create some incentives for people to come here, even if they don't have the particularly strongest claims. So right now we really have been spending billions on enforcement and border walls and all of those are totally irrelevant when people make it onto U.S. soil and have to go into a five-year backlog. So the answer is to focus resources on

clearing out that backlog and expediting the process rather than putting more money into a wall, which is utterly ineffective against asylum seekers. You can just wait across the Rio Grande because, of course, you cannot build a border wall in the middle of a river. Well, tell me a little bit more about that asylum process. I mean, it takes several years. What does that look like? You know, what are the steps? What are people doing in the meantime?

So the ironic thing about this wait is that it's not like you're doing a lot in the process while you're waiting. For most asylum seekers, the process is going to look like this. When you arrive, if you are released on a various program and not sent to ICE attention for whatever reason, you're going to basically be allowed to go wherever you want to go to because it's a free country. You're not restricted to a specific location unless the government, you know, it puts you on an order of supervision. You get an ICE check-in. You go to your ICE check-in. You get your court notice. You go to your first court hearing, which is usually going to take place usually about three to six months after you first arrive in the country. At your first court hearing, you tell the

judge what you want to do, whether you want to seek asylum, or whether you want to give up and go home, what have you. And then that initial process, then you have to file an asylum application within your first year of arriving in the country. That application has to be filed in English. It has to be done in a specific form. It's very hard to do without a lawyer. But say you manage to successfully fill it out, you know, nine months into the country, you go in front of a judge, you hand them your asylum application. And then the judge says, all right, great. will set you out for a trial on your application. And the judge looks at their calendar and says,

all right, it is December 2020. My next court date is for a trial is, let's say, May 2026. And then you just wait for that trial, which might not take place for three to four years. And of course, God forbid, you show up at the trial in three to four years and the judge is sick, then you're just going to get pushed off for another year or two. And believe me,

that does happen. So for most of that time, you're just waiting here in the country and you're not even able to legally work until six months after you've submitted that asylum application to the judge. So there's a lot of people who really struggle in the initial months in the country because they have no way of legally working. And they often have to rely on the kindness of strangers and friends and family. And realistically, they often have to work under the table because they have no other option but to do so because they don't get a work permit until you know nine months to a year after arriving yeah so this insanely long process uh at the end of already long journeys to get to the border in the first place all right well here's here's one more just for free um there's a lot of stuff a lot of uh information that's inaccurate floating around out there about title 42 so if you were going to pick the the piece of misinformation or the misconception that you hear the most often and correct it, what would it be? Tell us what's accurate. I think it's that a world without Title 42 is open borders. You hear this a lot, that the borders are open. But for the millions of people who've been expelled

under Title 42, the border is open. And without Title 42, we still have in effect the same immigration laws that existed under the Trump administration, under which tens of thousands, if not hundreds of thousands of people were deported. The real issue right now is that Congress hasn't funded the Department of Homeland Security anywhere near enough to actually be able to detain and process every single person at the border without releasing them in any circumstances. And so the world without Title 42 is, in essence, a restoration. of normal immigration laws that have existed for years. And it is also a world in which the right to seek asylum remains legal and on the books.

So I think that's sort of the second piece of misinformation, which is a related one. Seeking asylum is legal, and the U.S. government has to follow the law when it comes to giving people access to that right. Now, I know that there are a lot of people who disagree with the extent of the right, who think, think we should have harsher screening standards, who believe that it is a right that's being abused. But it's very important to note that it is actually still a legal right that is on the books that people have the ability to access. And it does not matter where you access it. The law is crystal clear, regardless of whether you go to a port of entry, regardless of whether you cross the Rio Grande or come across a mountain. The right applies to any person physically present

in the United States, regardless of manner of entry. And there's also no other restriction that says you have to apply for asylum in the first country you go through. That just doesn't exist in U.S. law. So when people are crossing and turning themselves into the Border Patrol, they are going through a legal process. And that process, because of these long backlogs, does not produce oftentimes rapid deportations. But that doesn't mean that there is no process or that the borders are.

open. It just means that there is a process that people are going through. And so I think people get very confused because there's like practical versus legal here. And I'm a lawyer, so I focus on the law. And I just think, you know, this is one area in particular where the misinformation is strong. So the end of Title 42 doesn't return us to an open border. It just returns us to the dysfunctional, slightly insane system that we had in place already. Pretty much. And that means that, you know, ending Title 42 is like ripping off a Band-Aid. Sure, you could keep that Band-Aid on while the wound festers and gets worse, but you're fooling yourself if you think the fact that you can't see the wound get worse

means it's not getting worse. And so if we rip off the Band-Aid of Title 42, that will give us the opportunity to really dig down into the guts of the asylum system and hopefully try to make some of the changes that everyone agrees are necessary. But at the end of the day, this is going to have to be something Congress does. As much as I'm sure President Biden doesn't want to admit it, the U.S. president doesn't have the ability to stop all of this kind of thing from happening. It's going to have to be on Congress to fix a lot of the problems in the laws, which even you can find Democrats and Republicans agreeing on. Of course, where we're going to draw the lines about who gets protected and how are difficult questions that are going to require compromise,

compromises. But if we don't actually start talking about those compromises, we're just going to be stuck with this dysfunctional system for years to come. All right. Well, thank you so much for your time. My pleasure. Thanks for having you. With Amex Platinum, access to exclusive Amex pre-sale tickets can score you a spot trackside. So being a fan for life turns into the trip of a lifetime. That's the powerful backing of Amex. Presale tickets for future events subject to availability and vary by race. Terms and conditions apply.

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