Opinion | It’s Time to End the Pandemic Emergency at the Border

President Biden took office pledging to rescind the Trump administration’s deliberately harsh policies toward migrants who show up at America’s doorstep. But as Mr. Biden’s first year in office draws to a close, his administration continues to lean heavily on one of those policies: Title 42, an emergency public health order that allows the government to turn away migrants at the nation’s borders during a pandemic.

The Biden administration says that border patrol agents are simply following orders from the Centers for Disease Control and Prevention that were put in place to keep the country safe from Covid-19. But there is little doubt that the administration has used the policy as a stopgap measure to quickly remove migrants who are gathering at the southern border in large numbers, pushed by the economic fallout from Covid in South and Central America and pulled by the rumors of lenient treatment under a more welcoming American president, among other factors.

On Friday, congressional investigators released excerpts from testimony by a former senior C.D.C. official who admitted that there was little public health rationale for instituting the policy, since the virus was already spreading in the United States by the time the Title 42 order was signed.

Border control agents have had close to two million encounters with migrants at the border so far in 2021, nearly twice as many as in 2019 and almost four times as many as in 2018. More than a million of this year’s encounters ended with migrants being deported or turned away under Title 42.

Although the Biden administration has carved out some humanitarian exceptions to Title 42 — unaccompanied children, for instance — its continued defense of the policy has horrified activists, international agencies and even some officials serving in the administration. Two left their posts in recent months after making scathing critiques. That’s because the use of Title 42 essentially makes it impossible for migrants who fear for their lives to claim asylum even at ports of entry and returns many to squalid camps in Mexico where they are vulnerable to violence and threats from smugglers and cartels. Under U.S. law, anyone who sets foot on American soil is entitled to express a fear of violence and persecution in their home country, setting off a process that can take years to resolve in backlogged courts. Title 42 short-circuits that process and allows for immediate removal.

Meanwhile, many people in the Department of Homeland Security are frustrated that a large number of migrants who are caught sneaking across the border are simply sent back to Mexico, where they regroup and try their luck another day. Both the Trump administration and the Biden administration used Title 42 to quickly expel unlawful border crossers instead of arresting and prosecuting them. Under the policy, there’s little cost to trying to sneak across again and again. As many as half of single adults expelled under Title 42 try to cross the border unlawfully again. That’s one reason the number of encounters has been so high.

Still, many border agents consider Title 42 a powerful tool to control the unusually high number of people trying to cross the border unlawfully, and they are not eager to relinquish it.

The result has been the worst of both worlds. The Biden administration finds itself under fire from both the left and the right for its handling of migrants at the border. The chorus of criticism reached new heights in September, when images surfaced of more than 10,000 Haitians camping under a bridge in Del Rio, Texas, and getting chased by border patrol agents on horseback. Polls suggest that the Biden administration is particularly mistrusted on immigration, with one showing that 34 percent of Democrats and 73 percent of independents disapprove of how the southern border has been handled.

What is broken at the border didn’t break in the past few months. It has been broken for years. It will take time — and help from Congress — to fix. But the administration must work harder to turn a system that is too often chaotic, arbitrary and even deadly into one that is more orderly and fair. The American people want a secure border where people enter lawfully, where criminals are arrested and where people who are in genuine fear for their lives are afforded a chance to apply for asylum.

Some say that Title 42 bought the administration time to rebuild the infrastructure for processing migrants that was dismantled under the Trump administration. But Title 42 must end, not only because it is morally and legally questionable but also because the Covid-19 pandemic is receding. As the border opens up to vaccinated tourists, and as it becomes possible to test and vaccinate migrants at ports of entry, the rationale for its use is evaporating. A federal judge ordered an end to the use of Title 42 as applied to family units in September, but the Biden administration appealed that decision.

It is time to put a more permanent policy in place. The administration has taken some important steps in that direction. Department of Homeland Security Secretary Alejandro Mayorkas — the first immigrant to hold that post — is seeking to utilize asylum officers who can adjudicate claims more efficiently than judges. This change, which is based on a plan developed by the nonpartisan Migration Policy Institute, should help whittle down the enormous backlog of cases.

The Biden administration has also opened important discussions with partners in Latin America to develop a regional strategy toward mass migration. While it needs to play a part, the United States is not the only possible destination for refugees. Other countries have played a crucial role in providing opportunities for those escaping hardship, natural disaster and violence. Colombia has extended temporary legal status to more than a million Venezuelans who were fleeing economic collapse, a commendable policy that allows them to work legally. Brazil gave work permits to about 98,000 Haitians after the earthquake in Haiti, and Chile has granted permanent residence to about 70,000 Haitians. But the economic fallout from the pandemic made the lives of Haitians in those countries even more precarious and prompted a backlash against them. President Sebastián Piñera of Chile tightened border controls and visa rules and cracked down on illegal immigration. That caused many to uproot their lives and travel north toward the Texas border, where Haitians and Venezuelans are showing up in unprecedented numbers. Many of the Haitians who camped out under the bridge in Del Rio in September had built lives in South America before making the journey to the U.S. border.

Under U.S. law, people who are already “firmly resettled” in another country are not eligible for asylum. But immigration lawyers say a temporary work permit with no path to permanent legal residency in Chile and Brazil should not disqualify Haitians from seeking a permanent safe haven in the United States. Nonetheless, roughly 8,500 Haitians who arrived at the Texas border have been deported to Port-au-Prince, a city that is already struggling with fuel shortages, widespread violence and a political crisis. It would be far more humane to send them back to Chile and Brazil. American officials should offer more financial and logistical support as well as more Covid-19 vaccines to countries that agree to resettle migrants. Mass migration, like the pandemic and climate change, can only be addressed by working collaboratively with our neighbors.

Lastly, expanding legal pathways for migrants to apply from their own countries for permission to work seasonally or live in the United States could give people hope that, if they wait their turn, they will be rewarded. That could help stem the tide of migrants making the dangerous trek north.

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