Last month, the CDC issued a decision terminating the long-standing public health order — known by its statutory chapter, Title 42 — that suspends the entry of migrants into the U.S. to reduce the spread of COVID-19. The termination was to take effect on May 23, 2022. Since its inception, many have decried the original order as a guise for closing our southern border to asylum seekers; for most other noncitizens, all travel suspensions were lifted by exceptions and exemptions. On its face, President Biden finally fulfilled his campaign promises to cease using the public health order to deter migration. (See our analysis of the termination decision here).
But in response, the attorneys general of Arizona, Louisiana, and Missouri — and eventually 18 other states — filed suit in the U.S. District Court for the Western District of Louisiana, Lafayette Division, challenging the Biden administration’s revocation of Title 42. The judge recently issued a temporary restraining order, effective through May 23, that halts the termination of Title 42 and requires the Department of Homeland Security to continue these expulsions.
The litigation could result in a permanent injunction and a short-term pause in processing asylum seekers right now. Still, it hardly provides a pathway for thoughtful policy change in the future.
Step 1: Stop relying on deterrence policies
Most previous administrations have relied on deterrence policies to scare potential migrants out of the idea of coming to the U.S., focusing on expanding detention capacity and using expedited deportation for newly arrived migrants and asylum seekers. The practices of imposing daily caps on the number of people processed at the border (“metering”) or immediately turning them back to Mexico under the Migrant Protection Protocols were also meant to limit the entry of new migrants.
As my colleagues wrote in a previous piece on the failures of deterrence:
Unsurprisingly, the focus on deterrence for the past two decades has led only to increased detention capacity instead of increased processing capacity. And yet, spikes in migration in 2014, 2017, and 2020 following increasing violence and devastating regional natural disasters evidence migrants’ continued interest in seeking refuge in the U.S. Their journey is about survival.
Steps 2 and 3: Expand capacity and enhance processing
Now that deterrence has been tried and failed, the time has come to expand our capacity to process asylum seekers and do it better. There is an ongoing humanitarian situation at the southern border that requires the Biden administration — and Congress — to immediately revisit how we manage the changing demographics and increasing numbers of asylum seekers.
Niskanen strongly recommends that the U.S. establish at least four regional processing centers (RPCs) in the interior of the U.S. for families and unaccompanied minors. We must also provide the resources and staff to:
- Conduct criminal background checks and investigations, collect and analyze biometrics, and conduct rapid DNA testing;
- Provide medical screenings and services, acute mental health services, and COVID-19 containment, treatment, and prevention;
- Ensure access to nutritional food and water, secure sleeping arrangements, recreation space, and short-term educational activities for children and for all other immediate necessities;
- Equip RPCs with facilities, personnel, and technology to conduct initial credible fear screenings and physical and virtual judicial hearings;
- Provide comprehensive oversight and monitoring of RPC conditions and ensure adherence to regulations and law;
- Conduct credible fear determinations at regional processing centers when possible;
- Transfer families and unaccompanied minors from the border to an RPC within three days;
- Keep the length of stay for children and families less than 20 days, per the Flores Settlement Agreement
- Require temporary, emergency appointments by each state governor in consultation with the Attorney General and state immigration professional organizations of at least 100 immigration judges per state — including corresponding support staff — to handle expedited reviews of families and unaccompanied children seeking asylum. Plan for three-month terms of service; renewable indefinitely to address immigration backlog.
- Increase the number of permanent immigration judges by no fewer than 500 judges and corresponding support staff;
- Allow the Attorney General to enter into contracts with or award grants to nonprofit agencies providing direct services and goods to asylum seekers where possible.
Additionally, we must simultaneously establish an expedited timeline — last in, first out — for families and unaccompanied children to have asylum hearings before immigration judges, ideally within 90 days of release from RPC and provide adequate notice for teleconference hearings. Additional protections must include resources to:
- Require verification of parental status or legal guardianship of an adult accompanying a child, including criminal and civil record check, background check, biometric identification, and fingerprinting;
- Coordinate with countries of origin to supplant and verify information attested to by asylum applicants; includes security provisions on privacy, limited use, and length of storage;
- Encourages information-sharing and cooperating with biometric collection in Mexico;
- Expand the definition of “family unit” to include certain extended family members — aunts and uncles, adult siblings, and grandparents — traveling with children and documentation necessary to prove familial relationship and prioritize placement of siblings together.
- Assign all unaccompanied children in government custody a child advocate who assists with placement with sponsor, oversight, and information about legal rights and processes.
- Require asylum officers to recommend legal counsel in particularly complex cases.
- Utilize existing asylee/refugee resettlement community, faith-based organizations, and nonprofits to provide services and necessities for families awaiting hearings.
- Allow DHS/CBP/ICE to accept in-kind donations at the southern border to aid waiting asylum seekers.
- Employ Family Case Management Program in applicable cases.
- Require consultation and cooperation with UNHCR, local groups, and parents or legal guardians to ensure effective and safe repatriation of unaccompanied minors whose asylum claims are denied;
- Prohibit repatriation without UNHCR confirmation that the child will be safely placed with a legal guardian or parent; absent assurance, the child must remain in U.S. custody.
For more information on RPCs, please refer to the Homeland Security Advisory Council CBP Families and Children Care Panel Final Report, published November 14, 2019. For more information on how we detain children and the reforms needed to the Flores Settlement Agreement, see our previously published commentary.
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