Opinion | What Both Sides Get Wrong About Title 42

Betty Q. Hixson

Proponents of keeping Title 42 in place assert that the quick expulsions are needed because they give officials greater ability to intercept and turn back more migrants. A recent report from the Migration Policy Institute notes that Title 42 expulsions can take as little as 15 minutes, while removals under standard immigration law, which require more procedures and paperwork, can often take an hour and half.

But the procedural steps that Title 42 bypasses are critical for the U.S.’s ability to target smuggling networks and discourage repeat crossings. This is why Border Patrol agents warned in a 2021 report from the Government Accountability Office that Title 42 “negatively affected enforcement” because the expulsions gave them no time to collect intelligence from migrants concerning nearby smugglers and other illegal activity.

The quick expulsions under Title 42 also cut corners in ways that prevent authorities from deterring migrants as they attempt to reenter the country. Before the pandemic, officials were able to use criminal prosecution, fines and other penalties to deter people from repeatedly crossing the border. This is because apprehended migrants were being processed under standard immigration law. Title 42, however, is a provision that exists under health law, which means that authorities are incapable of issuing penalties for reentry against migrants who are expelled under this provision. Border Patrol officials have stated that because of Title 42, migrants now try to cross multiple times a day. Since the pandemic expulsions began, repeat crossings jumped from 7 percent in 2019 to 26 percent in 2020. It’s not unheard of for people to make as many as 30 attempts at crossing in just the span of a few weeks.

With migrants now encouraged to make multiple attempts at entry, smuggling networks are enjoying a windfall from those soliciting their services for each attempt. “It’s great for us,” one human smuggler from El Salvador told Reuters when asked about the policy. He, along with two other smugglers, said that they save roughly $1,000 each time Border Patrol expels one of their Central American clients. This is because Title 42 drops them off at locations that are relatively close to the U.S.-Mexico border. Before the policy, U.S. officials had to formally deport Central Americans back to their home countries, and smugglers incurred the costs of transporting their clients back for another attempt.

But even when considering all the security liabilities that Title 42 is responsible for, proponents of the policy are correct in saying that Biden needs a plan in place as he works to rescind the program. This plan must include interagency coordination that rapidly expands capacity as more families arrive to claim asylum. The administration must also work with humanitarian organizations to ensure that they’re in the best position possible to monitor and shelter migrants — and that their capacity is being fully utilized.

At the same time, advocates for ending Title 42 as well as the Biden administration must acknowledge that the overwhelming majority of people who are being expelled under the policy haven’t been families seeking asylum, but rather single adults fleeing extreme economic deprivation and in search of work. In February alone, more than 90 percent of Title 42 expulsions were single adults — the vast majority from Mexico. Mexican President Andrés Manuel López Obrador has acknowledged this reality and urged Biden several times last year to work with him to expand guest worker programs for the U.S., Mexico and the Northern Triangle. Though the Biden Administration recently suggested a willingness to do so, it has not yet provided any details.

It’s critical that Biden’s post-Title 42 strategy includes increased access to guest worker programs. Extensive research shows that when expanded legal channels are paired with border security measures, illegal immigration rapidly declines. This was exactly what happened in the mid-1950s when the U.S. government expanded their agricultural worker program for Mexicans, which caused illegal immigration to collapse by 95 percent in just 5 years. Border Patrol saw the success of the agricultural program and warned that restricting it would cause “a large increase in the number of illegal alien entrants into the United States.” But in 1960, the Department of Labor did just that, causing employer use of the program to drop by 30 percent in just one year while Mexican apprehensions increased by 55 percent. When the program was eliminated altogether, apprehensions continued to grow, reaching nearly 1 million in 1976.

Unfortunately, Biden may be repeating the same mistake the U.S. made decades ago with a new rule that will only increase barriers and reduce access to our agricultural visa program. The program is already riddled with more than 200 time consuming, duplicative and complex rules that shut out many businesses. According to the State Department, the sponsorship process alone costs the average U.S. farmer more than $10,000. While some of these regulations ensure that employers offer wages that exceed average rates and that they try to recruit Americans first, many of these hurdles aren’t required by U.S. law and do nothing to improve conditions for either American or guest workers. Biden should prioritize streamlining the process by removing this red tape so that the agricultural program becomes a viable choice for U.S. farmers and migrants. Given that the artificial scarcity of workers is a driver behind today’s 40-year-high inflation levels, such reforms would help countless working-class Americans struggling to afford food and other basic necessities as prices rise faster than wages.

With a surge at the border and a shortage of workers, maintaining Title 42 has done nothing to solve either crisis — aside from creating more jobs for human smugglers. Though the Biden administration is right to rescind Title 42, chaos at the border will continue to drive headlines and the U.S. economy will limp forward until Biden prioritizes expanding legal channels for those in pursuit of a better life.


https://www.politico.com/news/magazine/2022/04/01/title-42-biden-repeal-border-policy-00022416

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