On January 5, President Biden announced a confusing expansion of Title 42, the pandemic-era policy of expelling migrants and asylum seekers from the border for public-health reasons. He said: “I don’t like Title 42. But it’s the law now, and I have to operate within it.” For the record, the Supreme Court halted the termination of the policy in December, pending oral arguments on March 1. So any position that Title 42 is law is temporary, though the solution Biden proposed earlier this month would be more permanent.
The details seemingly aimed for a zeroing-out effect. On the one hand, the United States would allow 30,000 migrants per month from Cuba, Nicaragua, Haiti, and Venezuela to enter the country and legally work for up to two years, if they applied from their home country, thereby opening the opportunity to apply for asylum once they enter the United States. However, simultaneously, the administration would be expelling 30,000 migrants per month to Mexico from those same countries under the use of Title 42, if they arrived at the border.
The move has triggered outrage even from within Biden’s own party. Sen. Robert Menendez (D-NJ) called Title 42 “a disastrous and inhumane relic of the Trump Administration’s racist immigration agenda” and “an affront to restoring rule of law at the border.” The American Civil Liberties Union said the new plan would “put more lives in grave danger.”
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Although the Department of Homeland Security says Title 42 is explicitly a public-health measure, not an immigration control tool, in practice the order prevents migrants from claiming asylum when arriving at the border. In the most generous interpretation, invoking Title 42 was a genuine measure to curb viral spread at some prior point, but in the years since it has become a makeshift tool that buys time for future action on immigration reform.
The administration has been buying time in this fashion for two years. According to the Washington Office on Latin America (WOLA), a research and advocacy organization, of all Title 42 expulsions since March 2020, 81 percent of those were under Biden.
Last year, when the Biden administration tried ending the emergency order, Republicans at the state level mounted a legal challenge. Their arguments highlighted the potential for calamity at the U.S.-Mexico border, not on the basis of public health. The loose connection made by District Judge Robert R. Summerhays said that lifting the order would cause “irreparable harm” because states would have to spend funds on migrants, particularly on health care. In other words, Summerhays’s justifications were typical arguments about supposed adverse economic effects migrants have on the United States.
ASIDE FROM SHIFTING BORDER POLICY, there’s another ongoing problem within the federal agencies that adjudicate immigration proceedings: a growing backlog of more than 11 million cases across the Department of Justice and the Department of Homeland Security (DHS). According to the Migration Policy Institute, most of this growth is a lingering consequence of the pandemic, which stalled services across the entire government.
Title 42 has become a makeshift tool that buys time for future action on immigration reform.
The 11 million cases are divided between the United States Citizenship and Immigration Services (USCIS) office within the DHS, and others inside the Executive Office for Immigration Review (i.e., immigration courts), which are housed within the Justice Department. That massive backlog represents migrants from a variety of backgrounds: DACA recipients, asylum seekers, spouses of U.S. citizens, and green card visa applicants, to name a few.
As of early last year, according to the Migration Policy Institute, the immigration court backlog topped 1.6 million cases, a rise from 1.1 million cases before the pandemic. Meanwhile, USCIS’s backlog topped approximately 9.5 million, a rise from 5.7 million at the end of 2019.
Although the backlog continues to grow, a key point of debate with Title 42 has been how migrants seek to claim asylum. Beyond the noise over the so-called proper means to claim asylum, at the end of last year, low estimates suggest that 1.6 million migrants were waiting for an asylum hearing.
About half of those were waiting for hearings before judges in the immigration courts. Meanwhile, the other half were waiting for interviews with asylum officers from the USCIS.
The legal distinction is most important for the people who review asylum request cases. But generally speaking, appearing before an asylum officer from USCIS is a less adversarial process. There is no opposing counsel. Meanwhile, those who are appearing before an immigration judge are also arguing their case against an attorney representing Immigration and Customs Enforcement (ICE).
However, that approximate 50-50 split is misleading because of the legal particularities of an asylum claim. There are two types: affirmative and defensive applications. Affirmative asylum cases with an asylum seeker who has followed the correct procedures are filed with USCIS. If denied, their case moves to immigration court, while still being classified as “affirmative.” The number of these cases has precipitously dropped.
Most asylum cases are defensive ones, the result of DHS pushing a migrant into removal proceedings. Once the removal procedure begins, a migrant can then claim they are entitled to asylum. However, this legal distinction does not compute with reality. According to Syracuse University’s Transactional Records Access Clearinghouse, “in most cases, the migrants came to the U.S. for the purpose of seeking asylum in the first place.”
All of these particularities matter, because once all available options have been exhausted, cases generally end up inside an immigration court before an immigration judge. The administrative snarls that predate a case before it arrives in immigration court are thus a result of policy from the top, for better or worse.
On paper, courts are supposed to be independent bodies. They are supposed to be immune from the political agendas of other government operatives or serve as independent mediators that can rectify previous errors.
But immigration courts are not. As a part of the Justice Department, at the end of the day, they work under the attorney general. While other courts function under a de jure practice of independence, immigration courts are held to the same standard despite not possessing the same protections that allow other judges to carry out their basic job functions. This creates an impossible work environment for immigration judges to fairly adjudicate every case with the attention it deserves. Instead, their measurements of success are based on accomplishing the president’s goals, which are translated into quotas for immigration courts. For example, Biden administration officials touted removing 1.3 million migrants last year.
As the Prospect has previously reported, immigration judges have long pointed out the tenuous environment they must work in.
But later this month, the Federal Labor Relations Authority (FLRA) will be hearing from the National Association of Immigration Judges (NAIJ) over whether or not their union will be reinstated. The FLRA will now have a majority of Biden appointees.
A dysfunctional immigration system can only start to work with independent courts. But that change can only happen through congressional action. In the meantime, a never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.