Biden’s Border Plans Face a Major Test as Title 42 Restrictions End

The Washington Post / Nick Miroff, Maria Sacchetti, Toluse Olorunnipa

17:21 JST, May 11, 2023

President Biden began sweeping aside his predecessor’s restrictive immigration policies on his first day in office. But he left one major Trump measure in place, the pandemic-related border expulsions known as Title 42.

On Thursday, that policy will expire, along with the federal government’s coronavirus emergency status.

The change is a potentially pivotal moment for Biden. His campaign promises of a more welcoming approach at the border have been repeatedly stymied by new waves of people crossing illegally, and former officials say he has become visibly angry at times behind closed doors as his aides sparred over whether tougher measures might stem the flow.

Already, migrants eager to enter the United States are crossing the border with Mexico in record numbers. Border Patrol stations and holding facilities are stretched beyond capacity, and officials expect illegal crossings to surge even higher when the Title 42 health restrictions expire. Mayors of strained U.S. border cities such as El Paso and Brownsville, Texas, have declared states of emergency.

Biden has mobilized 1,500 active-duty troops to join 2,500 National Guard personnel supporting U.S. border agents. The administration insisted the military forces won’t be used to interdict migrants.

“It’s going to be chaotic for a while,” the president told reporters this week.

Biden’s team is rushing to put in place new restrictions on asylum seekers that will take effect when the Title 42 border policy lifts. The restrictions will make it easier for authorities to deport migrants who claim asylum to gain entry into the United States. But some members of the president’s own Democratic Party have denounced the measures, saying he’s resorting to Republican President Donald Trump’s playbook. Immigrant advocacy groups are threatening to sue.

Biden officials describe the end of Title 42’s pandemic rules as a looming challenge but also an opportunity for the administration to implement an immigration enforcement model it considers more balanced and humane than Trump’s, which included separating children from their parents.

Biden is using his executive authority to offer hundreds of thousands more migrants per year an opportunity to come to the United States legally, in the hope that he can dissuade millions more from crossing unlawfully. However, his proposals for broader changes to the U.S. immigration system have little chance in a deeply divided Congress.

The administration has had two years to prepare for the pandemic measures to end. If the next several weeks go badly for Biden and result in border chaos, the president could pay a steep political price on an issue that ranks among his worst-rated in polls.

“I’m not sure we’re ready for the consequences,” said Leon Panetta, a former defense secretary and a member of the Department of Homeland Security’s advisory council, which provides guidance for Secretary Alejandro Mayorkas. “When you remove Title 42, there’s going to be new challenges that are going to have to be faced head-on.”

Unwinding Trump policies

Biden officials have used Title 42 more than 2 million times to quickly turn back migrants at the Mexico border or expel them to their home countries without letting them plead their cases. The high number of expulsions would have been difficult to imagine when Biden was running for office and his campaign staff posted an impassioned 6,600-word policy statement repudiating Trump’s hard-line approach.

Under Trump’s pandemic restrictions, border apprehensions plunged and the detention centers had plenty of space. Biden promised to restore the country’s reputation as a “beacon” for refugees and persecution victims and to overhaul the U.S. immigration system.

Biden ordered a temporary pause on immigration enforcement in U.S. communities as he began peeling back Trump’s legacy. But as border crossings surged in the weeks that followed, Biden began turning to some of the same deterrent measures that Trump and President Barack Obama used, making his approach appear contradictory to his campaign promises.

Biden swiftly ended a Trump program that required asylum seekers to “remain in Mexico” until a judge could hear their case, for instance, but by keeping Title 42 in place for so long, the president ended up expelling far more migrants than Trump did.

As a candidate, Biden condemned Trump for charging migrants with the crime of crossing the border illegally. But Biden is now threatening to apply those same criminal penalties aggressively when the Title 42 pandemic rules end.

The president is personally conflicted by the issue, former aides say. His Irish immigrant roots are core to his political identity, and Biden displays genuine sympathy with hard-working families he sees taking blue-collar jobs in pursuit of their American dreams.

Yet he’s also deeply troubled by chaos at the border and the seemingly intractable problems of the U.S. immigration system, at times becoming upset when aides offered what he viewed as excuses for inaction.

“When Biden would have explosions, and he did have a bunch of them, he’d say: ‘D— it, you haven’t told me anything different from what you told me last week,'” said a former official who spoke on the condition of anonymity to describe the president’s behavior.

“Then 10 minutes later, he’d say: ‘Look, I’m sorry, I know everybody is trying.'”

Internal divisions

The first two years of Biden’s presidency included a tug of war between liberal progressives and moderates over how to handle an influx of migrants that has made the administration appear overwhelmed and incoherent.

White House officials have said Biden has been buffeted by a complex set of factors, including pandemic-ravaged economies that spurred mass migration from Latin America, court rulings that prevented him from ending Title 42 last year, and Republicans who slam his policies in social media clips while blocking immigration reform in Congress.

Biden’s more-restrictive immigration policies were bound to meet resistance from the Democratic Party’s base, even as he often coupled them with new and expanded pathways for legal immigration to present a balanced approach.

The president’s handling of the border could fracture his fragile electoral coalition as he runs for a second term, said Terrance Woodbury, a Democratic pollster. Woodbury noted that Biden performed better in 2020 than Obama with White male voters, older Americans and people with college degrees – groups that could be particularly susceptible to Republican attack ads about chaos at the border.

At the same time, Democrats have lost some support from young minority voters who have long been wary about the octogenarian president’s commitment to liberal ideals, Woodbury said.

“They already were cautious, and this pivot to the middle only makes them more cautious,” he said. “‘The calculus that he’s making is that he is going to be able to continue appealing to both groups – this browning younger electorate, and the graying older electorate.”

Despite the progressive language in Biden’s immigration platform – which has since been removed from his campaign website – moderate officials in the administration had always favored tougher enforcement on the border than in the interior of the United States.

The president wanted to create a path to U.S. citizenship for the 11 million undocumented immigrants who have lived for years in the shadows. Biden also said he did not want mass migration and havoc at the border. But illegal crossings along the southern border reached 2.4 million last year, the highest ever.

In the weeks before Biden took office, his White House chief of staff, Ron Klain, asked newly appointed Homeland Security adviser Elizabeth Sherwood-Randall to outline some enforcement options Biden could use to discourage illegal border crossings, according to two former White House officials who spoke on the condition of anonymity to describe internal deliberations.

A “deterrence memo” was drafted by Biden’s incoming national security team, led by Roberta Jacobson, a former U.S. ambassador to Mexico, and Katie Tobin, a former U.S. asylum officer who had worked in Mexico for the United Nations. The memo described conventional enforcement tools such as detention and deportation, but it met opposition from progressive White House immigration advisers Esther Olavarria and Tyler Moran, who argued that deterrence measures don’t work. The team hit an impasse and the memo never made it to Klain’s desk.

Biden’s team of immigration advisers was similarly divided over how fast to undo Trump’s border policies. Federal law says migrants can request asylum if they are on U.S. soil, and team members saw Trump’s policies as a flagrant violation of those rights. They believed they had a moral obligation as well as a political mandate to fully reopen the U.S. asylum system.

Biden halted the “Remain in Mexico” policy after taking office, but within weeks, his immigration team was facing a new border surge and questioning whether they’d been too hasty. “It was the worst of all possible worlds,” said the first former official. “We’d said we were doing away with it, and now we had to rethink putting it back.”

The most extreme dissonance came amid Biden’s willingness to deport migrants to countries his administration had declared dangerous. The administration has repeatedly offered work permits and temporary protection from deportation to Haitians, citing food shortages, the 2021 assassination of the president, and rampant kidnappings and gang activity in Port-au-Prince.

But after thousands of Haitians streamed into the border city of Del Rio, Texas, in September 2021 – many of them coming from countries such as Chile, where they had earlier fled – officials expelled horrified migrants on airplanes bound for Haiti.

In Washington, some progressive Biden officials were devastated.

U.S. special envoy to Haiti Daniel Lewis Foote resigned after learning about the deportations on the nightly news, saying it was irresponsible to send deportees to a nation in crisis that couldn’t absorb new arrivals.

“I was furious,” Foote said in a phone interview. “It undermined our work to restore security and democracy in Haiti.”

He said the deportations wouldn’t stop migrants at a time when U.S. employers – who have 10 million job openings – are hiring.

“These guys all have friends, relatives in the United States and know all they’ve got to do is get past that border and their life changes markedly for the better,” he said.

Tracking the border numbers

As illegal crossings rose through the first several months of Biden’s presidency, his top immigration advisers chastised critics for measuring the administration’s border record based on the monthly enforcement data released by Customs and Border Protection. Trump had treated the CBP data like a stock report, praising his border team when the numbers went down.

Moran, who had run the nonprofit advocacy group Immigration Hub before joining Biden, told The Washington Post during a May 2021 interview that the administration wanted to change the perception that high border numbers were tantamount to a failure, or even something negative.

“Apprehensions don’t tell the full story, and getting to zero is not a measure of success,” she said then, urging patience as the administration developed its strategy – led by Vice President Harris – to alleviate the root causes of Central American migration through investment and job creation.

But the soaring numbers imperiled hopes for immigration changes that would grant citizenship to millions of undocumented immigrants who had lived here for decades.

And the president wanted the numbers under control.

Behind the scenes, Klain and other senior Biden officials were checking the border numbers using a dashboard tool with the latest CBP data. The ups and downs of enforcement were tracked at times by Biden himself, according to two former White House aides who spoke on the condition of anonymity to discuss the president’s private briefings.

“Both Klain and POTUS had a fixation on the numbers,” said one of the former aides. “At that point, the president was not interested in the longer-term stuff. He was interested in what’s going on right now, and whether it was getting worse or better.”

Moran, who had joined the Biden team to spearhead the administration’s immigration reform push in Congress, left the White House after a year. Republicans opposed creating a path to citizenship for undocumented immigrants as long as border arrivals were surging.

Officials could see where their policies might lead to unintended consequences.

Biden officials early on decided it was unsafe to expel unaccompanied minors under Title 42, though a federal court ruled that they could. Advocates had argued that the expulsions violated a 2008 human-trafficking law. But that year only 8,000 minors crossed the border alone.

Since Biden took office, 150,000 minors have been crossing the border alone per year, often sent by parents and relatives who know teens and children are far less likely than adults to be deported.

Many of the minors have ended up in dangerous jobs, cleaning slaughterhouses at night or working construction to pay off debts to smugglers and support family back home, leading to criticism that the Biden administration had released the minors into dangerous conditions.

Root causes

Biden responded to the surging number of border crossings during his first months in office by deploying Harris to address the root causes of migration in Central America. Harris and others have promoted U.S. investments to create jobs in El Salvador, Guatemala and Honduras as a strategy to curb mass migration.

But the nationalities arriving at the U.S. southern border have changed dramatically since then, led by record numbers of Cubans, Nicaraguans and Venezuelans fleeing authoritarian governments. Mexicans, Colombians, Ecuadorans, Indians, Russians and others from around the world have crossed in record numbers, too, posing new logistical and diplomatic challenges for the administration.

Some members of the president’s own party, such as Rep. Vicente Gonzalez (Texas), have opposed lifting Title 42, arguing that the administration isn’t prepared – and that the burden will fall on border communities.

“The president is a good guy, and he’s not going to separate families and rip children from mother’s arms like Trump did,” Gonzalez said, speaking by phone from his district in the border city of McAllen. “But at same time, we need strict border enforcement, and we can do it humanely.”

U.S. officials say new technologies, emergency facilities and additional staff have given them far more capacity to process migrants quickly than during previous border surges. But migrants released from U.S. custody in recent days have described jampacked holding cells and days spent waiting with no showers.

The Biden administration’s immediate plan is to manage the border by offering more opportunities for migrants to apply to enter the United States legally by using a mobile app. The new asylum rule effective when the Title 42 border policy lifts will allow the government to reject asylum seekers who cross illegally or fail to seek protection in another country along their route to the U.S. border.

And a deal with Mexico will allow Biden officials to deport thousands of migrants from Cuba, Haiti, Nicaragua and Venezuela per month back across the border, creating a workaround for U.S. authorities with limited ability to send them to their home countries.

“The lifting of the Title 42 public health order does not mean our border is open. In fact, it is the contrary,” Mayorkas said Wednesday at a news conference in Washington, announcing an online Spanish-language campaign to warn migrants. “Do not listen to the lies of smugglers.”

The Biden team’s carrot-and-stick approach appeared to reduce illegal crossings earlier this year. But in recent weeks thousands of migrants, mostly from Venezuela, have been streaming over the border, ignoring or unaware of the administration’s directives to apply online.

As Thursday nears, the Biden administration is confronting the self-imposed deadline largely alone. Its plans are fragile: Federal judges could knock down legal pathways and asylum restrictions that aim to steer migrants to safer, orderly routes into the United States and away from the border. That system can change quickly, and the international cooperation touted by Biden officials has been tenuous.

The Colombian government abruptly suspended deportation flights in recent days – a program called “Mama Returns” – after complaints about degrading U.S. detention conditions and the shackling of female detainees.

“At this stage of the game, I think the administration has had enough notice that they have got to be ready to handle whatever happens. They definitely are going to be tested in these next few weeks,” Panetta said.

“It’s not going to be easy,” he said. “I suspect that it’s one of those explosive issues that no matter what you do, you’re going to get blamed.”