How Biden Came to Own Trump’s Policy at the Border

Speaking from the White House, on September 24th, Alejandro Mayorkas, the Secretary of Homeland Security, tried to share some good news. “Less than one week ago, there were approximately fifteen thousand migrants in Del Rio, Texas,” he told reporters. “As of this morning, there are no longer any migrants in the camp underneath the Del Rio International Bridge.” For the previous week, footage of the crisis had been playing on a loop on network news. Some thirty thousand Haitians were at the border, seeking asylum, and a number of them had set up the makeshift camp. Members of the U.S. Border Patrol, some on horseback, policed the northern banks of the Rio Grande. From the south, Mexican law-enforcement agents swept through the border town of Ciudad Acuña, arresting as many Haitians as they could. As Mayorkas spoke, and in the days afterward, a fleet of planes flew Haitians from Texas to Port-au-Prince. By the first week of October, more than seven thousand had been deported.

The authority that the Administration invoked to do this came in large part from an obscure, controversial policy called Title 42. Granted by the Centers for Disease Control and Prevention, it gives the federal government the power to block “non-essential” travel at the border in the event of an emergency involving communicable diseases. The patrolmen on horseback who were photographed menacing migrants, Biden said, were “beyond an embarrassment.” They were “simply not who we are.” But Title 42 remains in force, despite wide public outcry, including from congressional Democrats. Deporting the Haitians, Chuck Schumer, the Senate Majority Leader, said, “defies common sense; it also defies common decency.” He called on the Administration “to immediately put a stop to these expulsions and to end this Title 42 policy at our southern border.” Mayorkas responded by describing the latest deportations as a necessary response to the ongoing pandemic. “Title 42 is a public-health authority and not an immigration policy,” he said—a claim that is the subject of an ongoing court battle. In mid-September, a federal judge in Washington, D.C., ordered the Biden Administration to stop applying Title 42 to families at the border, on the ground that it unfairly denied them the right to seek asylum. He gave D.H.S. fourteen days to end the practice while the government appealed. On September 30th, the day of the deadline, a D.C. appeals court stayed the judge’s order. It was a momentary victory for Biden, but one that sharpened questions being asked by current and former members of his Administration: is Title 42 worth the humanitarian and political costs?

The policy’s status is so fractious, in part, because of its history under the previous Administration. Stephen Miller, Trump’s notorious immigration adviser, repeatedly tried to use public health as a pretext for closing the border. Then, in March, 2020, the White House seized on the advent of COVID-19 to draw up new plans to curtail the rights of asylum seekers by using Title 42, an order that had been on the books since 1944 but was very rarely invoked. There was no evidence that asylum seekers were transmitting COVID-19 at high rates, and the C.D.C.’s top doctor refused to sign off on the policy because, as the Associated Press reported, he thought that “there was no valid public health reason” for it. But, after Vice-President Mike Pence appealed directly to Robert Redfield, the head of the C.D.C., the agency issued the authorization. COVID clearly raised complicated logistical questions: What is the best way to hold large numbers of immigrants arriving in the middle of a pandemic? How should tests for the virus be administered? Other nations, too, paused their asylum processing during the pandemic, Susan Fratzke, of the Migration Policy Institute, told me. But, within several months, many of them had restarted, at least in some measure. “The countries with well-functioning asylum systems were the ones that got working again,” she said. The United States was not one of them. By the time Biden entered office, there had been more than four hundred thousand expulsions under Title 42.

In addition, several developing humanitarian crises were making incoming officials wary. Tens of thousands of asylum seekers stranded in northern Mexico were newly intent on entering the United States, now that Trump was out of office. In the fall of 2020, two Category 4 hurricanes had hit Central America in the span of a month, displacing tens of thousands of people. The pandemic was driving migrants to new depths of desperation, exacerbating humanitarian emergencies that already existed in Haiti, Nicaragua, and Venezuela. All this would have strained the U.S. asylum system even if it were functioning efficiently, and the Trump Administration had just spent four years eviscerating it.

Members of the Biden transition team decided to leave Title 42 in place, continuing to refuse entry to asylum seekers while working on a new system to scale up capacity. The idea was to reverse the previous Administration’s most aggressive policies and build in safety protocols for the pandemic, but that approach introduced an immediate tension. “You either believe in asylum or you don’t,” Eleanor Acer, of Human Rights First, told me. “The use of Title 42 was never really about public health.” As transition officials I spoke to saw it, however, they were pausing asylum in order to save it: a planning document from December, 2020, stated that thirty days into the Biden Presidency the U.S. would admit three thousand asylum seekers each month; after a hundred and eighty days, it would admit twelve thousand a month. Title 42, a former Biden Administration official told me, “seemed like it was prioritized as a deterrence tool while getting the asylum system up and running. There were regular conversations about how it wasn’t going to exist forever.”

The first test of the Administration’s resolve came in March, when thousands of unaccompanied children, most of them from Central America, arrived at the border. In the final days of the Trump Administration, after a lawsuit brought by the A.C.L.U., a federal court had ruled that minors were exempt from Title 42. The Biden Administration complied and began admitting them, but left the rest of the policy untouched.

The response in Washington was seismic, and typical. Republicans attacked Biden for causing a “border crisis,” and media coverage amplified the narrative that the President, in vowing to unwind some of Trump’s most egregious policies, had triggered a “surge” of migrants. Through Title 42, the Administration was still turning away almost all single adults and a large share of families seeking asylum. Migrants who were returned to Mexico found themselves targets for criminals and extortionists. In April, the sister of a pregnant Honduran woman and her young son, who were kidnapped, told the Los Angeles Times, “Why dump them to try their luck in the most dangerous cities in Mexico?” But, several current and former Administration officials told me, the President was also growing concerned about the optics north of the border. “The politics matter,” one of them told me. “No one can act like they don’t.”

Mexico, in the meantime, had recently passed a law preventing certain Mexican states along the border from detaining families with young children. This posed operational complications for the Administration: Title 42 allows the U.S. to send asylum seekers immediately back to Mexico; if some Mexican state governments wouldn’t accept the families, the Administration would have nowhere to send them. So U.S. authorities in parts of South Texas began allowing some families to enter, but, elsewhere along the border, turned others away. In many cases, D.H.S. created what it called “lateral flights”: people who crossed the border in one place were arrested and flown to another, then expelled from there. “Once you have interior releases”—in which people are admitted into the country—“then it’s game time at a large scale,” another former Biden Administration official told me. “Other people start coming. At this point, Title 42 ceased to serve a purpose as a deterrent.” And single adults who were immediately expelled just kept trying to cross the border. Title 42, the official said, “created new problems.”

The Administration has proposed a number of measures to revamp the asylum system. One of them sounds technical but is potentially profound: it would allow asylum officers with the U.S. Citizenship and Immigration Services, rather than immigration judges, to rule on individual cases. This would make the system much more efficient and humane. The problem, in the short term, is time—the rule will take several more months to be finalized in order for it to withstand legal scrutiny. Between handling the immediate crises and enacting larger-scale reforms, the Administration had no obvious intermediate plan. “The official reasoning for Title 42 may be public health, but as a migration tool it allows for quick and flexible expulsions,” a former official said. “It’s difficult to let it go.” The White House had an easier time jettisoning many of the benchmarks set during the transition; it also began taking increasingly dramatic enforcement actions. By the summer, D.H.S. was flying hundreds of Central Americans from the U.S. border to southern Mexico, where Mexican authorities sent them into the jungle across the Guatemalan border. “The agents didn’t tell us where they were taking us, and then when the bus crossed into Guatemala, they said, ‘Okay, that’s it, get out,’ ” a Salvadoran woman told a reporter for the Washington Post. Another former official told me, “They’re choosing enforcement because they’re overwhelmed by logistics. You’re in a policy revamp of epic proportions, and you’re in a political war. But the policy and politics became murky and intertwined.”

In June, D.H.S. finally indicated that it would begin phasing out Title 42 for families by July 31st, but then the Delta variant emerged. One former official—who described Title 42 as “the wrong moral choice, the wrong policy choice, and the wrong logistical choice”—acknowledged that “the rise of Delta caused genuine pause” from a public-health standpoint. The Rio Grande Valley, where infection rates were already high, was an area of particular concern. The Administration, the official added, “had so many hard things in front of it.”

By the end of July, the government had delayed its plans to roll back Title 42. “It will remain in place as long as that is the guidance from our health and medical experts,” Jen Psaki, the White House press secretary, told reporters. On August 2nd, the A.C.L.U. went back to court to sue the government on behalf of families seeking asylum. Lee Gelernt, the lead attorney, was engaged in two separate sets of talks with Administration lawyers at the time. One, which had remained largely amicable, involved D.H.S.’s efforts to reunite thousands of families who had been separated under Trump’s zero-tolerance policy. The other, on Title 42, was more contentious. According to Gelernt, the government said that “they just needed time” to repair the damage wrought by the previous Administration. “We gave them six months, more than enough time to implement the necessary mitigation measures recommended by the C.D.C.,” Gelernt told me. “We had no choice but to return to court when it became clear they were not going to end the policy anytime soon.”

The Biden Administration has also been facing pressure from the right. Governor Greg Abbott, of Texas, has refused federal aid to test migrants at the border for COVID. In July, he signed an executive order allowing state police to pull over anyone suspected of transporting newly arrived immigrants. Doing so, he said, “will reduce the risk of COVID-19 exposure in our communities.” (The Justice Department sued Texas to halt the policy.) Then, in August, a federal judge in South Texas, a Trump appointee, ordered the government to reinstate an exceptionally harsh policy, the Migrant Protection Protocols, which the Trump Administration had instituted in 2019. The M.P.P. forced tens of thousands of asylum seekers to wait indefinitely in Mexican border cities while D.H.S. slowly processed their applications. Biden had campaigned against the M.P.P., and he ended it soon after taking office. In the first several months of his term, the Administration allowed some twelve thousand of the asylum applicants to enter the country. According to the judge, though, the Administration had acted too fast, and needed to conduct a more thorough review before cancelling the policy altogether.

D.H.S. has said that it will comply with the judge’s order, but will also offer a new legal rationale for terminating the M.P.P. The logistics, which involve negotiations and planning with the Mexican government, are complex. But, before the judge’s ruling, Biden officials were also considering putting in place a “more humane version” of the M.P.P. Several officials told me that the judge’s ruling gave the President cover to proceed. When I asked a current official why it is so hard to discern Biden’s vision for the border, the official pointed out that the White House has already had three people in charge of border policy. “Crazy that we end this first year with M.P.P. and Title 42 being the primary border policies,” the official said.

The majority of the Haitians who had reached Del Rio are now either back in Mexico or in Haiti. Many of them hadn’t been to their home country in about a decade; they had gone to South America after the devastating earthquake of 2010, and have been on the move ever since. The assassination of President Jovenel Moïse, in July, followed by another earthquake, in August, have driven out more people. Countries such as Colombia, Panama, and Mexico have reported major increases in the number of people travelling north. “We very well could be on the precipice of a historic displacement of people in the Americas,” Dan Restrepo, a former national-security adviser, told the Times.

For years, migration experts have insisted that the growing displacement of people in the hemisphere is too large a phenomenon for the U.S. to manage alone. The Biden Administration has acknowledged as much; it has undertaken several initiatives to address the root causes of migration and to work with other governments in the region. Yet, so far, aside from sanctions against some corrupt Central American politicians, there isn’t much to show for these efforts. For now, political pressure keeps interfering with plans to improve asylum access. Measures to increase testing protocols and increase asylum capacity at ports of entry, for instance, have been stalled at D.H.S. since March.

Two prominent Administration officials have resigned in the past two weeks in protest of Title 42. The first was Daniel Foote, the U.S. special envoy to Haiti. “The people of Haiti,” he wrote, “simply cannot support the forced infusion of thousands of returned migrants lacking food, shelter, and money without additional, avoidable human tragedy.” On Monday, Harold Koh, a senior adviser at the State Department, and the only political appointee on the department’s legal team, followed him. Title 42 is “illegal” and “inhumane,” Koh wrote in an internal memo obtained by Politico, and its use “continues to violate our legal obligation not to expel or return (‘refouler’) individuals who fear persecution, death, or torture.” On a recent CNN broadcast, Anthony Fauci was asked about the policy. By then, the U.S. had made more than a million expulsions under Title 42; seven hundred thousand of them have occurred since Biden became President. Fauci was circumspect, but clearly uncomfortable. He said, “Focussing on immigrants, expelling them or what have you, is not the solution to an outbreak.”