After more than three years, Title 42—a policy that allowed immigration officers to return migrants they encountered at the border with Mexico without a hearing, thereby shutting hundreds of thousands out of the asylum system—has ended. The Biden administration didn’t rescind Title 42 because of a desire to rebuild the asylum process, but because it had to. The statute authorizing the border closure is part of the Public Health Service Act. Once Biden lifted the Covid-related emergency declarations, the pretext for Title 42 disappeared. Instead of a return to the pre-pandemic status quo, however, the end of Title 42 has ushered in a labyrinthine set of new regulations, many of which are right out of Trump’s playbook.
In order to qualify for asylum, migrants must now make an appointment with Customs and Border Protection via the CBP One app. That sounds easy enough, but the app is notoriously prone to crashes. Migrants report rushing to enter their information in the app to secure one of the limited slots available each day—there are only 1,000—during a very short window each morning. Most asylum seekers who arrive at the border without having made an appointment through the app will be deemed ineligible for asylum unless they first applied for protection in Mexico and were denied. Anyone deemed ineligible for asylum is now subject to expedited removal, a process that allows people to be deported without going before an immigration judge. And those who are deported face a five-year bar on reentry.
As a presidential candidate in 2020, Biden criticized Trump for “drastically restrict[ing] access to asylum” by “imposing additional restrictions on anyone traveling through Mexico or Guatemala” and lambasted Trump’s “disastrous policy of ‘metering,’” which “created a horrifying ecosystem of violence and exploitation.” Now Biden is doing both. The CBP One app has systematized metering, and Trump’s third-country transit ban is back with a few tweaks.
Rather than enact policies that will alleviate the situation at the border, the administration appears to have developed its stance on immigration almost entirely in response to criticism from the right. But the right will accuse Biden of being soft on immigration no matter what he does; for example, his critics have called CBP One a “concierge service” for unauthorized immigrants even though it is actually a streamlined version of Trump-era metering. By attempting to appease the right, Democrats have ceded ground, and the consequences for migrants have been disastrous.
“It’s going to be chaotic for a while,” Biden said two days before Title 42 ended. But immigration officers stationed at the border encountered just an average of 4,400 migrants each day in the first week after Title 42 was lifted—far fewer than the administration’s projections of up to 14,000 daily. In Title 42’s final days, more than 10,000 migrants crossed the border each day. Reports from the border suggest that apprehension numbers are low because migrants are aware of the new rules.
But this is not to say there isn’t chaos at the border—there is, and much of it is by design. On the Mexican side, people who have fled dangerous conditions in their home countries are subjected to similar dangers in Mexico, where they’re forced to wait in limbo, pursuing the extremely limited pathways to asylum eligibility. On the US side, there’s chaos too. At the behest of Florida’s attorney general, a Trump-appointed federal judge recently blocked CBP from releasing some migrants from its custody without hearing dates. This has led to dangerous overcrowding: As of May 14, there were 22,000 people in Border Patrol custody, including an 8-year-old girl who died on May 17. Democrats decried these human rights abuses when they happened under Trump. Now some Democratic senators have proposed reinstating Title 42 for two years so Congress can “send more resources to the border.”
For now, the administration views the low apprehension numbers as a win. “The deterrence message is working,” one official told the Los Angeles Times. But this success comes at the expense of tens of thousands of asylum seekers who find themselves stranded in Mexico, waiting for appointments they may never get.