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Biden Has Five Weeks to Replace the Trump-Era Asylum Process With a Better One

Now that a federal judge has vacated Title 42, which used the pandemic as a pretext for expelling asylees, the White House will have to adapt on the fly.

Sergio Flores/Getty Images
A group of migrants arrives to seek shelter in a church in Piedras Negras, Mexico.

After two and a half years of the so-called Title 42 policy being used to summarily expel would-be asylum-seekers, Judge Emmet Sullivan of the D.C. District Court finally laid out in an order something that has long been painfully clear to everyone: Since its inception, this policy had nothing to do with public health and everything to do with blocking access to the asylum system.

In response to a long-running lawsuit brought by the American Civil Liberties Union, Sullivan—much like the bewildered child observing the emperor’s lack of clothes—pointed out that there were obviously many more sensible ways for the government to prevent the spread of Covid-19 than to issue a sort of blanket prohibition on asylum-seekers, going on to explain that it couldn’t just ignore the entirety of asylum law in issuing this policy. Title 42 is thus, at long last, vacated, with the order stayed at the government’s request until December 21.

The Biden administration now has a crucial five-week period in which to prepare for the termination of a policy to which it has grown accustomed, and whose end will likely prompt thousands of people who’ve been waiting for it to end to attempt to seek asylum all at once. It’s a bottleneck that the government created for itself, and how it responds in this interim period will set the tone for the federal government’s posture toward humanitarian migration for the foreseeable future.

One of the best answers here might lie in a program that often gets confused with the asylum system: the refugee program, which has the same exact qualifying criteria but where processing happens outside the United States and refugees arrive with status already in hand. Despite Biden’s on-paper expansions of refugee arrivals over the incredibly low caps set by Trump, refugee admissions in practice have remained at historical lows, with the fiscal year 2021 and 2022 numbers combined hitting less than a fourth of the 125,000-person cap the president set for 2022 alone.

There are a lot of reasons for this shortfall, among them that the refugee resettlement infrastructure as a whole, made up of a web of interconnected government agencies and private organizations, fundamentally fell apart during the double whammy of Trump’s open hostility and the global Covid-19 pandemic. Yet with both of those factors in the rearview mirror (to varying extents), there’s an obvious chance for Biden to kill two birds with one stone: He can revive a refugee system that, despite notable debacles like the turning away of Jewish refugees during World War II, has served as a global model of humanitarian assistance, and process migrants at points before they show up at the southern border.

Biden should also consider raising the cap again and increasing earmarks that already exist for refugees from the Caribbean and South and Central America, who make up the lion’s share of current asylum-seeker flows. Done right, this can be good for everyone: U.S. authorities aren’t scrambling to process somewhat unpredictable arrival flows, cramming people into the already overburdened immigration court system, and would-be migrants aren’t forced to traverse the dangerous Darién Gap or take unsafe boats out of Haiti. The U.S. already has a security presence throughout the region, in part with the tacit goal of discouraging and controlling migration from abroad. Refocusing efforts and personnel toward refugee processing is perfectly doable. The only real obstacle is politics.

On that note, what definitely shouldn’t happen—but is absolutely in the cards—is a turn toward draconian enforcement of a different type. Let’s remember that Title 42 was simply the latest in a series of increasingly airtight restrictions on asylum engineered by Trump adviser and single-minded anti-immigration zealot Stephen Miller, who was also responsible for policies like metering and the Remain in Mexico program, both of which have separately been the subject of litigation. Biden officials would likely balk at the notion that they will respond to the end of Title 42 with such severe alternate restrictions, but let’s remember that the administration that began with the flashy but largely ceremonial signing of pro-immigration executive orders actively decided to keep Remain in Mexico and Title 42 in place.

Recently, NBC News reported that Biden officials’ fears over a potential influx of migrants on ships from Haiti—propelled by the social and political destabilization of the nation that has only been worsened by America’s decision to expel tens of thousands of Haitians there under Title 42—has them considering a maritime interdiction campaign that would send Haitian asylum-seekers to some third country or, potentially, a migrant detention camp at the Guantánamo Bay Naval Base. This would be a repeat of a 1990s-era policy that is considered a particularly dark chapter in U.S. attitudes toward humanitarian migration. Clearly, all options are on the table.

We needn’t speculate about an increased border security posture being part of the toolbox when it comes to the post-Title 42 landscape. Back in April, when the administration was undertaking its somewhat half-hearted effort to end the policy itself, Homeland Security Secretary Alejandro Mayorkas issued a memo outlining some broad strokes of the government’s preparations, mainly six so-called “border security pillars.” The first one lays out a plan for “surging resources, including personnel, transportation, medical support, and facilities to support border operations,” while the third emphasizes that the administration will expand use of a practice known as expedited removal, which allows it to deport people quickly, albeit not with the total lack of due process that became a hallmark of Title 42.

It was inevitable that the planning for the end of Title 42 would include some commitments to beefing up border security, the default option any time mainstream policymakers want to demonstrate that they’re serious. Yet among the many takeaways from the midterm elections’ red wave that wasn’t is that it’s not particularly politically popular to be sadistic toward immigrants. As usual, in the run-up Republicans layered on the border chaos and “great replacement” fearmongering best exemplified by the fiasco of Florida Governor Ron DeSantis’s stunt of flying migrants to Martha’s Vineyard under false pretenses. It didn’t work, and even in areas where Republicans did make gains, like New York, the messaging that connected had more to do with crime and inflation.

That should give the Biden administration cause to focus on plans that improve the processing of asylum-seekers rather than fortifying the barriers that keep them out. The second pillar in that memo, for example, has to do with streamlining processing by having personnel from different government agencies and nonprofits gathered together to handle multiple functions at once—that is to say, simultaneously interviewing migrants for asylum eligibility while setting up court dates and arranging for transport somewhere they’ll be able to receive housing and other services.

Instead of hanging back and letting shady characters like DeSantis and Texas Governor Greg Abbott use migrants as political pawns and have cities like New York take it squarely on the chin, the federal government could also take a much more active role in coordinating with states and localities to spread asylum-seekers around to where there’s capacity to receive them. And instead of dumping tens of thousands more cases in the teetering immigration courts, which now feature a staggering backlog of almost two million pending cases, the administration should expand a small but promising new program to have U.S. Citizenship and Immigration Services personnel quickly and directly adjudicate asylum claims. There’s absolutely no need to throw every border asylum claim into the drawn-out and adversarial arena of a court system.

Fundamentally, this is a fork in the road that has been a long time coming. Biden officials have gotten used to the ease of using Title 42 to evade humanitarian obligations, but the policy was always destined to end, if not for moral reasons then at least for legal ones. Now they can respond with more militarization that will never, ever fully dissuade people from coming, or work to actually build out a better system.