Repealing Title 42 would cause the worst border crisis in American history

OPINION:

A federal judge may have staved off the worst border crisis in American history. At least temporarily.

In late April, Judge Robert R. Summerhays of the Louisiana Western District Court signaled that he would soon block the Biden administration from ending Title 42 while a lawsuit – brought by more than 20 states against the administration — proceeds. 

The administration originally planned to lift Title 42 on May 23. This Centers for Disease Control measure, put in place by the Trump administration in March 2020, has allowed Customs and Border Protection to expel illegal border crossers quickly and with minimal paperwork. The Biden administration claims that COVID-19 is no longer an existential crisis and that migrants have “ceased to be a serious danger to public health” — so there’s no longer any need for the pandemic-era policy. 

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There is a contentious debate about the Biden administration keeping certain COVID-19 restrictions in place for Americans while lifting them for foreign nationals entering the U.S. illegally. But there is no question about what ending Title 42 would mean at the border. By the administration’s own admission, “encounters” of illegal border crossers would surge from an already near-record level of 7,100 per day to an unprecedented 18,000 per day.

Lifting Title 42 would result in what the president of the 18,000-member Border Patrol Union says would be “complete chaos.”

Judge Summerhays found that the states would likely prevail on the merits of their claims that the CDC did not follow proper procedure when deciding to lift Title 42, and that the costs for providing services such as health care and education to aliens released into the United States by the federal government would be borne by the states. Americans can only hope Judge Summerhayes is right about the likely outcome of the case. 

But make no mistake — keeping Title 42 in place won’t actually solve the ongoing border crisis. It’s merely akin to not throwing more gasoline on an inferno. 

Members of Congress who are urging President Biden to preserve Title 42, but who are not also working to fix the broken asylum system that caused this border crisis, are wholly unserious about solving the problem.

The asylum system was designed to allow people genuinely persecuted by their governments to seek sanctuary in the United States. But now, economic migrants — often coached by smugglers, NGO staffers or immigration lawyers — are flocking to the border and making fraudulent asylum claims, knowing they’ll be released into the United States and likely be able to remain here permanently, even if their claims are eventually denied. 

There are six simple steps Congress should take to end the border crisis.

First, raise the credible fear standard, so that migrants can no longer claim evidenceless fears to gain perfunctory release into the United States.

Second, provide funding for more detention space and ICE personnel. By law, those who enter the United States illegally are supposed to be detained until their asylum claims are heard by an immigration judge — but right now, law enforcement is releasing migrants because it doesn’t have enough detention beds.

Third, restrict the use of parole, a quasi-legal status that federal officials can offer to migrants — but only on a case-by-case basis. Department of Homeland Security Secretary Alejandro Mayorkas is currently abusing his parole authority by releasing illegal aliens en masse into the United States and granting them work permits.

Fourth, prevent DHS from abusing prosecutorial discretion as a way to avoid enforcing immigration laws passed by Congress.

Fifth, make the Migrant Protection Protocols — also known as the “Remain in Mexico” policy that required asylum seekers to wait south of the border for their court dates — mandatory.

Sixth and finally, require DHS to reject asylum claims from aliens who passed through a safe country on their way to the United States. Right now, economic migrants are coming to the United States from around the world, in many cases crossing oceans and half a dozen national borders. Asylum should be reserved for people fleeing persecution, not poverty.

Title 42 is one of the last remaining deterrents against illegal immigration. Ending it would make things much worse at the border. 

But keeping it would, at best, merely maintain the status quo. Congress can’t content itself with the current unacceptable level of illegal immigration. 

• Eric Ruark is the director of research at NumbersUSA, an organization that seeks to reduce overall levels of immigration to the United States.