Biden’s New Immigration Policy Cements End of Liberal Asylum Rules

Title 42 made it possible to turn away people at the southern border and expires on Thursday

By Michelle Hackman, WSJ   8.5.23

When he ran for president, Joe Biden promised to restore America’s commitment to welcoming people fleeing persecution after Donald Trump spent four years restricting it. Two years into his presidency, Mr. Biden is instead doing the opposite by crafting a new system designed to limit the waves of asylum seekers pressuring the southern border.

Mr. Biden’s reversal reflects a broader political shift. In the three years that the U.S. employed Title 42, the pandemic-era measure that made it possible to turn away people seeking asylum at the southern border, lawmakers in both parties have grown increasingly comfortable with a future in which the decades long right to cross America’s border to seek refuge from persecution is no longer sacrosanct.

Once the public-health measure ends on Thursday, Mr. Biden’s administration is planning to replace it with a set of new measures meant to mimic Title 42. Migrants who cross into the U.S. illegally—which asylum seekers are explicitly permitted to do under existing laws—will be quickly subjected to a higher asylum standard that is designed for most people not to clear. Those who fail will be deported to their home countries or back to Mexico, which has agreed to keep taking them.

Border Cities Strained by Migrant Surge Brace for Title 42 Expiration

Homeland Security Secretary Alejandro Mayorkas said on CBS Sunday that the administration expected “larger numbers at first” of migrants at the border over the coming weeks, adding that preparations had been under way for more than a year and a half.

Mr. Mayorkas cited plans to create “lawful, safe, orderly pathways before they reach the border.’’ This includes turning away migrants who arrive illegally and banning them from entry for years.

“If you do not qualify for relief, you will be removed quickly. And you will face a bar of at least five years to admission,” he said.

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The new approach is the latest effort by several successive administrations to control what has become an unruly situation at the southern border, which has only worsened after the pandemic with an economic downturn across Latin America and tightening autocracies across the region.Mr. Biden moved toward Republicans in accepting that far too many migrants were using the asylum pathway and that reverting back to the prepandemic rules would only perpetuate the problem.

Before Title 42, the idea of a Democrat championing such a significant rollback of the nation’s humanitarian obligations would have been unthinkable.

The modern asylum system was enacted in the aftermath of World War II, after the U.S. turned away thousands of Jews attempting to flee Nazi Germany. In several international accords, the U.S. and dozens of other countries agreed that refugees fleeing for their lives must be able to cross borders into other countries without permission, because they would risk death or persecution if they waited. In 1980, Congress passed laws protecting the right to seek asylum after crossing a border illegally. Even as Congress took a more conservative turn in 1996 with an immigration bill increasing penalties for illegal border crossers—the last major immigration legislation to become law—it upheld that right.

For the system’s first 30 years, it was used by only a smattering of people, including Soviet Union defectors, Iranian Jews and Chinese citizens persecuted for violating the one-child policy.

That changed in 2014 with the arrival of tens of thousands of unaccompanied children and families from Central America, who approached the border almost uniformly to ask for asylum. Since then, millions of asylum seekers have entered the country via the southern border, and the backlog to hear their cases stretches five or more years, allowing them to live and work in safety in the meantime.

For the last decade, three successive administrations have tried and mostly failed to get a handle on the issue. President Barack Obama tried jailing migrant families to try to deter more from coming, while President Trump attempted separating families at the border and eventually sending them back to dangerous northern Mexican border cities to wait out their asylum hearings.

Minors at a temporary shelter for unaccompanied children in Homestead, Fla., in 2019. PHOTO: WILFREDO LEE/ASSOCIATED PRESS

Though most members of Congress acknowledge the current system is broken, lawmakers vary widely on what that means. Many conservative Republicans would prefer to see fewer or no immigrants entering the country at all, while centrists favor redirecting many of the migrants currently coming into new, low-wage visa programs. Some on the left prefer maintaining a robust humanitarian route, fearing that such work visas could compete with blue-collar union workers.

Republicans in Congress have pushed for nearly a decade to halt the flow of migrants by tweaking the law, but they faced universal opposition from Democrats and resistance from federal courts.

Title 42 accomplished precisely what Republicans wanted without changing the law. For the first time, anyone who asked for asylum could simply be turned away without consideration of the merits of their case. Though the practice explicitly circumvented Mr. Biden’s campaign promise, it also proved a reasonably effective way to reject asylum seekers—and one the public could easily understand.

“We lack a modernized border management system that can process asylum seekers fairly and quickly,” said Angela Kelley, a former senior immigration adviser to the Biden administration who departed last year. “I think Title 42 really exposed that hole in our system and made it hard to undo.”

The measure proved far from an ideal enforcement tool on the ground. It relied heavily on Mexico to effectively decide which asylum seekers from various countries could be expelled. The policy had the unexpected result of making it easier for migrants with no intention of asking for asylum to make repeat crossings until they entered the country undetected, driving up the number of arrests. Those factors together help explain why the Biden administration has seen record-high border crossings even while implementing Title 42.

Migrants waited in line on the banks of the Rio Grande in December last year. PHOTO: PAUL RATJE FOR THE WALL STREET JOURNAL

Officials guided people to a deportation flight in Harlingen, Texas, last week. PHOTO: VERONICA G. CARDENAS/ASSOCIATED PRESS

Despite support from some Democrats, many in the party saved some of their harshest criticism for Mr. Biden over his decision to keep the Trump-era policy in place for so long. Senate Majority Leader Chuck Schumer (D., N.Y.) came out against the president on the issue in 2021, after the Biden administration made use of Title 42 to carry out mass deportations to Haiti. “We cannot continue these hateful and xenophobic Trump policies that disregard our refugee laws,” he said in a speech on the Senate floor at the time.

Still, other Democrats in Congress, who had spent years defending the right to seek asylum, repeatedly told the president in private they supported the de facto asylum ban staying in place if lifting it meant an even larger surge at the border, according to current and former officials in the White House and Congress. Several Democratic senators, facing tough 2022 re-election fights, signed onto a bill extending Title 42 until the Biden administration presented a satisfactory replacement plan at the border.

“There’s no doubt these are antiquated laws,” said Rep. Vicente Gonzalez (D., Texas), a centrist Democrat who represents a district along the South Texas border and support’s Mr. Biden’s new policy. “The fact is, if about 80% of asylum seekers will never qualify for asylum under any circumstances, we need to look at modernizing our asylum laws in this country.”

Fresh efforts to keep Title 42 gained traction last week. Sens. Thom Tillis (R., N.C.) and Kyrsten Sinema (I., Ariz.) introduced a measure that would continue the government’s ability to expel asylum seekers, including unaccompanied children, while dropping the public-health basis for doing so.

“Title 42 goes away on Thursday, and everyone here in Arizona knows we are not prepared,” Ms. Sinema said Sunday on CBS. “The Biden administration had two years to prepare for this and did not do so. And our state is going to bear the brunt and migrants will be in crisis as soon as next week.”

Mr. Mayorkas called the senators’ proposed bill a Band-Aid solution, adding that the system needed to be fixed.

U.S. Border Patrol agents processed a group of migrants in Sunland Park, New Mexico, in April. PHOTO: PAUL RATJE FOR THE WSJ

For his part, Mr. Biden has landed on an approach that redirects asylum seekers to legal avenues, rather than trying to shut them out entirely. Those who wish to ask for protection here can still approach the border if they make an appointment—a process that has been taking migrants weeks or months—or else apply to a new program that allows them to fly here and live temporarily with a private sponsor. Crucially, both programs allow the U.S. to screen the people they are accepting and, even more important, decide in advance how many asylum seekers they are willing to take on.

Rep. Tony Gonzales (R., Texas), a moderate on immigration who represents a swath of the Texas border, said that while Mr. Biden has come very far since he took office, the president is still too focused on opening new avenues for migrants to seek asylum. “All you’re doing is adding fuel to the fire, instead of quickly adjudicating these cases and getting people to realize they’re not going to qualify for asylum,” he said.

Mr. Biden’s plan faces several hurdles. In the coming weeks, so many migrants are expected to cross the border with the lifting of Title 42 that the government might not have the capacity to detain or deport them all. That would result in migrants being once more released at a large scale onto the streets of border cities. Even if Mr. Biden’s carrot-and-stick approach succeeds in redirecting migrants away from the border into other avenues, elements of the plan have either already been challenged in court or likely will be as soon as they are enacted.

Republican-led states, for instance, have already filed a lawsuit challenging Mr. Biden’s use of an immigration authority to allow tens of thousands of migrants a month to fly to the U.S. with private sponsors, and a decision in the case could come as soon as June. The American Civil Liberties Union has also pledged to challenge Mr. Biden’s new asylum limits as illegal restrictions that go far beyond Congress’s intention. A similar suit filed by the group against a largely identical Trump-era policy resulted in a court striking it down in 2020. If any one piece of the strategy is struck down, it could threaten to unravel the entire approach.

Daniella Cheslow contributed to this article.

Write to Michelle Hackman at michelle.hackman@wsj.com