Asylum after Title 42

U.S. Port of Entry, Nogales, Arizona. Photo: Peter Costantini, 2020

Peter Costantini ~ Seattle

Pandemic-era restrictions on asylum and other modes of immigration at the southwest border have been struck down by a court, but were extended by the Supreme Court on appeal at least until February. However, the Joseph Biden administration has reportedly been considering plans to continue restricting asylum by reinstating other methods used by the Donald Trump administration.

Any measure to stop immigrants from requesting asylum anywhere in the U.S. – at ports of entry, elsewhere along the border, or inside the country – or forcing them to apply for it first in Mexico, is a violation of their human rights. These are protected by Article 14 of the 1948 Universal Declaration of Human Rights, the 1951 U.N. Refugee Convention, and the 1980 U.S. Refugee Act. Those who enter the country anywhere and ask for asylum from a government agent are not committing an illegal act. Requesting asylum makes them documented, legal immigrants, whether or not they are finally granted asylum, and regardless of the circumstances of their entry. In fact, they need to be on U.S. soil or at a port of entry to ask for asylum. 

Title 42 and Title 8

Trump's first Attorney General, Jefferson Beauregard Sessions – a walking, talking Confederate monument; Sessions’ mini-Rasputin, Stephen Miller – a walking, talking hate crime; and Trump's consigliere, Steve Bannon – a walking, talking Ponzi scheme, worked tirelessly to erase the right to seek asylum. They started by choking off access at ports of entry, declaring "Zero Tolerance" in between, and separating immigrant children from parents to punish them. These are among the worst legal assaults on immigrants by a lawless administration. They caused acute suffering for thousands of families, leaving children and parents with psychological and physical scars, and rising numbers of corpses in the river and the desert.

The persecution of asylum seekers culminated in the invocation of United States Code Title 42 Section 265, a thoroughly debunked Trump policy of xenophobia masquerading as a public-health measure. Dr. Anthony Fauci, advisor to both the Trump and Biden administrations, rejected the idea that immigrants were a significant reason why COVID-19 was spreading in the U.S. “Let’s face reality here," he told CNN. “The problem is within our own country. Focusing on immigrants, expelling them ... is not the solution to an outbreak.” Many other public-health and human rights authorities inside and outside the government also criticized the use of a political measure that had no public-health basis. U.N. High Commissioner for Refugees Filippo Grandi called in 2021 “for the U.S. government immediately and fully to lift its Title 42 restrictions … which continue to deny most people arriving at the southwest U.S. land border any opportunity to request asylum.”

Nevertheless, for nearly three years Title 42 has been used to rapidly expel most immigrants back to Mexico without any possibility of requesting asylum. Predictably, this has only swelled the numbers of desperate migrants in Mexico and provoked more of them to try repeatedly to enter the country.

If, instead of walls, private prisons and National Guard troops posted to the border, Trump had invested the same amounts instead in asylum officers, immigration judges, expanded infrastructure at ports of entry, and assistance in integration, the border today would be witnessing a manageable increase in immigration that could be met by scaling up existing facilities and staff. But instead he destroyed much of the existing functionality for handling asylum, refuge, and other forms of legal migration.

The array of abuses of migrants by the Trump administration, from the Muslim Bans onward, were tactics of a comprehensive strategy to end all immigration to the U.S. (except from Norway, as Trump reportedly clarified). The tiki torches of Trump’s base are lit by the Great Replacement theory and kindred racist and xenophobic ideologies. These unleash panic in the congregation because four-fifths of immigrants to the U.S. come from Latin America, Asia and Africa. And the U.S. Census Bureau has projected that the national population will become “minoritywhite” by 2045, although immigration is not the only driver of this trend.

Trumpism, which has taken control of the Republican Party, represents the vanguard of an international white sado-nationalist movement, widely condemned as a modern form of fascism. As commentator Adam Serwer put it: “The cruelty is the point”. Its preferred scapegoats are immigrants and other people of color. And it has made gains in much of Europe as well.

The Biden administration should have rapidly terminated and deracinated the entire immigration pogrom hatched by Trump’s cadre. To give in and reinstate any part of it now would be a betrayal, not just of the humanitarian approach it originally promised, but also of basic respect for the rule of law.

Encounters and invasions

After the damage done by Trump to immigration systems  and immigrants, his allies now hyperventilate about an “invasion of illegals” overrunning the border. But the number of unique undocumented individuals apprehended while attempting to enter the country without authorization – what informed observers might expect as a metric of immigration enforcement - is substantially exaggerated by misuse of a statistic the Department of Homeland Security calls “encounters”.

An encounter is defined by DHS as any incident in which an immigration official detains or expels an immigrant at a port of entry, at the border between ports, or inside the U.S.. The same individual migrant may often have multiple encounters with immigration enforcement. In the years before Title 42, however, standard immigration procedures under Title 8 of the U.S. Code usually took a matter of days or months to process an immigrant. And DHS’s figure for “recidivism”, or repeat encounters with the same individual during the previous year, averaged about 11 percent of all encounters from 2015 through 2019.

Since Title 42 was put into effect in March 2020, however, agents have been able to expel immigrants en masse within a matter of hours, without providing any chance to request asylum or other immigration relief. So the Border Patrol workload per encounter, and probably overall, is drastically reduced. Many immigrants have responded by trying repeatedly to cross the border to turn themselves in. So not surprisingly, recidivism more than doubled to over 27 percent in FY2021, and that’s probably an underestimate. A report by the U.S. Government Accountability Office criticized Customs and Border Protection (the parent agency of the Border Patrol) specifically for its inability to accurately track immigrant identities and, as a result, sharply underestimating recidivism, which GAO estimated as more than twice as high as CBP’s figure.

With roughly one-quarter of Title 42 encounters representing repeat encounters with the same individual, the number of unique individuals should be reduced to about three-quarters of total encounters. DHS has acknowledged this in some of their news releases, but continues to treat total encounters as the most important metric.

Another unacknowledged factor: of those unique individuals, many were clearly asylum seekers, who were not undocumented and were following a legal immigration path. For the nearly three years of Title 42, however, the majority of border-crossers have not been given the opportunity to even ask for asylum. So when they are summarily expelled back to Mexico or another home country under Title 42, the Border Patrol does not count them as asylum seekers. To calculate the percentage of asylum seekers, we have to estimate, based on referrals of defensive asylum cases to immigration court during the 4 years prior to Title 42, FY2017 through FY2020. This yields a figure of 34.1 percent of unique individuals who are defensive asylum seekers at the border. Keep in mind, though, that there are also some asylum seekers who are rejected before they can be referred to court, so these figures are only partial and the percentage is no doubt larger.

Based on DHS’s own accounting, or lack of it, the number of unique undocumented migrants expelled during the period of Title 42 appears to be half or less of the total number of encounters.

Applying these ratios to Fiscal Year 2022 (October 2001 through September 2022), DHS pegs total encounters for the year at a little under 2.4 million. Minus an assumed 25 percent recidivism rate (the official figure has not yet been released), this yields an estimate of around 1.8 million total unique individuals encountered. We estimate that around one-third of these, something like 600 thousand, were trying to ask for asylum and following a legal path, although most were summarily turned away without a chance to make their case. Subtracting those asylum seekers leaves roughly 1.2 million unique individuals who tried to enter the U.S. uninspected and undocumented, and did not ask for asylum - although the real number is probably lower because of the inadequacies of CBP record-keeping.

These are still large numbers of undocumented immigrants, but far from a “record”, as it is often portrayed.

In FY2000, the final peak of the huge, mainly Mexican migration of the late 1960s through 2007 and the Great Recession, some 1.644 million apprehensions were made by the Border Patrol. Encounters, though, also include rejections at ports of entry, called “inadmissibles”. Again, we have to estimate them based on FY2012 through FY2016 statistics: along with 1,990,844 apprehensions in this period, there were of 491,991 inadmissibles, or 24.7 percent of apprehensions.

Applying this ratio to FY2000, for this period, we estimate that there were 406 thousand inadmissibles. Adding them to FY2000 apprehensions raises total encounters to 2.050 million. Recidivism figures for FY2000 were not available on the DHS web site, but it was likely much lower than under Title 42. An estimate of 11 percent yields 225 thousand repeats, leaving a total of unique individuals encountered of 1.824 million. Few migrants were requesting asylum back then, so that shouldn’t affect the total much. But we should also adjust for the difference in total U.S. population between then and now: 281,421,906 in 2000 growing to 331,893,745 in 2021. Adding this difference of 17.9 percent yields a FY2021-equivalent figure of 2.151 million unique undocumented individuals encountered in FY2000.

Clearly, the FY2022 number for unique undocumented individuals trying to enter – 1.2 million - does not approach the earlier migration’s FY2000 peak (adjusted for population) – 2.151 million – nor the previous peak in 1986, nor other totals over the intervening 14 years which also approached those levels. An apples-to-apples comparison demonstrates that FY2022’s total is far from a record.

Migrating and returning

However, there are even bigger problems with DHS statistics and their interpretation in politics and the media. It would be reasonable to assume that enforcement numbers had some consistent correlation over the two decades with the numbers of immigrants without documentation who successfully evaded enforcement and entered the U.S. unauthorized to reside here. But there is no correlation, and the differences between 2000 and the present are striking. A DHS study estimated that in 2000, despite over 1.6 million Border Patrol apprehensions, 2.1 million undocumented immigrants successfully entered without authorization. DHS does not provide a recidivism figure for 2000, and the 2.1 million may include a small number of repeat entries, so assuming 10 percent recidivism gives us 1.89 million unique individuals. Again adjusting for the 17.9 percent difference in U.S. population between then and now, the number of undocumented individuals entering successfully (by avoiding encounters) in 2000 would be equivalent to over 2.2 million in 2021 terms.

In the 2020s, by contrast, the yearly change in the net undocumented population in the U.S. has actually been slightly negative for more than a decade. Several studies tracking it conclude that this population has continued to shrink slightly since its peak of 12.2 million in 2007 down to 10.4 million in 2019. This figure is the total of people without papers, net of those entering and leaving, so it adds the number entering and subtracts deportations, expulsions and voluntary exits. This change from 2000 to today is partly due to the series of recessions and slowdowns in the U.S. economy leading to the Great Recession in 2008, to the much-increased difficulty of entering the country without documentation, and to the changing composition of immigrants’ nationalities and propensity to seek asylum.

The delta is clear between then – a 2000 influx of a couple of million undocumented immigrants – and now – a slight net loss of undocumented people from 2007 through 2019, likely followed by the same in subsequent pandemic years. Rather than a surging “invasion” of the undocumented, we are now seeing a slightly shrinking population in the long term.

Beyond the numbers, many historians and economists have concluded that the massive 40-year exodus of primarily Mexican migrants that ended with the Great Recession created net economic and social benefits for all levels of U.S. society. Three economists won the 2021 Nobel Prize in Economic Sciences for decades of work creating methodologies enabling the verification and quantification of those gains. For the much smaller migration now underway, there is no reason to doubt that it will also be good for all economic strata of this country.

Whys and wherefores

Historical comparisons give us context. But we still need to ask why so many travelers are coming to the border now. There are at least two major drivers.

Clearly, many immigrants now at the border are long-haul returnees from among the hundreds of thousands, perhaps millions, trapped in Mexico over the past five years by Trump’s policies and their continuation. Title 42’s shutdown of the border added large numbers to those throngs. Their ranks have also been swelled by roughly four million deportees over the previous two administrations, many of whom were unjustly torn from their families and communities for nothing more than immigration violations or minor misdemeanors. Many of those trapped in Mexico cannot return to their homes because the reasons that drove them away are still in force. Some have settled there, but many of those have been waiting years for a chance to try to seek asylum or enter the U.S. in other ways.

The problem is not that Biden suddenly opened up the border – on the contrary, despite reasserting the recognition of human rights in some areas, he is still maintaining too many of Trump’s restrictions. The problem is that, while powerful forces continued to push desperate people northward, Trump locked down most immigration and blockaded many of those people for most of his term.

The other major factor driving migrants is the COVID-19 pandemic. Its public health effects and the ensuing economic crash have been as severe and much longer-lasting in most of Latin America and the Caribbean than in the U.S. The pandemic caused a 2020 drop of 6.9 percent in regional GDP, the biggest in seven decades, and slow growth is predicted for 2022 and 2023. Unemployment in the area reached 10.1 percent in the first half of  2021, and although it fell to 7.3 percent in the first half of 2022, it remained at nearly twice the level in the U.S. These trends in turn have exacerbated the existing official corruption, organized crime, climate catastrophes and other root causes long driving people to emigrate.

Menaces and benefits

Despite these upheavals, the idea that these tempest-tossed pilgrims are a threat or a menace that must be stopped should be buried in the toxic waste dump of history. Immigration is not a security issue. Immigrants are nearly always victims, and rarely perpetrators, of organized crime and terrorism. They have been kidnapped, tortured and murdered en masse by the cartels, but they commit fewer crimes on average than the U.S.-born.

As to drug trafficking, even completely blocking all immigration would have virtually no effect on it. Smugglers now rely primarily on a range of more reliable methods including commercial trucks and freight trains carrying drugs hidden in shipments of other goods, drones, small planes, tunnels, mini-submarines, cigarette boats, parcel or postal services, and U.S. citizens as couriers. Likewise, immigration has no correlation with terrorist threats within the U.S., which now come increasingly from the domestic white-supremacist right.

Another persistent deception is the idea that the country is being overrun by too many immigrants. As we’ve seen, the large numbers at the border and the inability to process them quickly enough have been caused mainly by Trump’s trapping of large numbers of immigrants in Mexico and destruction of already inadequate immigration processing capabilities.

Our demography, on the other hand, gives us the capacity to absorb several times the numbers that were accepted pre-Trump. The rate of population growth of the U.S.-born was around a third of one percent even before the pandemic, and is projected to decline further. Meanwhile, the elderly population is increasing steadily, so without immigrants, the workforce would likely be shrinking. On the economic side, the gross domestic product was growing at an average of 2.4 percent annually over the five years before the pandemic – far faster than the population. Unemployment remains at historic lows.

Three years of COVID-19 have demonstrated that our economy demands and benefits from large numbers of immigrant workers. This has been particularly visible in sectors that have experienced reductions in “essential” workers, many of whom are foreign-born. In agriculture, shortages of immigrant workers, caused partly by Title 42’s blockage of nearly all immigration, appear to have contributed to the reduction of supply of some foods and resulting inflation of prices.

Pandemic and other restrictions on immigration have effectively halted the influx of most immigrants for most of the past four years. According to economists Giovanni Peri and Reem Zaiour, this has left roughly two million fewer immigrants available for the U.S. workforce than would be expected given pre-pandemic trends. “[T]his dramatic drop in foreign labor supply growth”, they wrote, “is likely a contributor to the current worker shortages”.

On an international scale as well, our country was a low-immigration nation well before Trump: Canada and Australia have long accepted far more immigrants per capita, as have many countries in Europe. We could comfortably welcome millions more asylum seekers, refugees, and other immigrants annually.

We could and we should. It’s to our benefit to encourage infusions of fresh, dynamic human resources and capacities into our society. The past few decades have demonstrated that documented and undocumented immigration have overall positive effects for U.S. workers and consumers at all levels of the economy. Most labor unions, from the AFL-CIO on down, oppose Trumpist immigration policies and advocate for solidarity with the labor rights of all workers regardless of immigration status.

Politics and policies

Given these realities, it’s hard to understand what anyone in the current administration thinks they can gain by adopting racist, xenophobic, and ineffectual Republican policies. Whatever they do, the right will accuse them of creating chaos at the border and failing to stop the  chimerical brown-skinned hordes. Within the Democratic coalition, though, those kinds of policies will further alienate many Hispanic and other immigrant-rich communities, and especially young voters, who will correctly see them as betraying campaign promises and fundamental human values.

The Biden administration should reject any proposals to block asylum seekers, which would only raise the water level behind a structurally unsound dam. Instead, to begin to restore the asylum system, it should:

• Re-open all ports of entry to asylum seekers and others, staff them up with greatly increased numbers of asylum officers and support personnel, and scale up facilities there to meet demand.
• Expand the Credible Fear and Asylum Processing Rule, proposed this spring, to cover all asylum seekers. But remove the onerous deadlines imposed on immigrants to find counsel and to obtain evidence from their home countries, make the time frames much more flexible, and make legal assistance broadly available.
• Between ports of entry, work with Mexico, the UN’s International Organization for Migration, and NGOs to create safe crossing places where asylum seekers can present themselves to Border Patrol agents without having to risk their lives in the river or the desert. Also work with them to secure safe spaces for those waiting at ports of entry and elsewhere on both sides of the border.
• Reinstate and expand the Family Case Management Program begun under President Obama.
• Triple the numbers of immigration judges and support personnel, and move the Executive Office for Immigration Review (the immigration courts) from the Department of Justice into the judiciary branch.
• Eliminate defensive asylum (“guilty until proven innocent”) and institute affirmative asylum for all cases at the border.
• Enable more asylum seekers to fly into the country and request affirmative asylum at airports, perhaps by reducing restrictions on vacation and other temporary visas, and providing asylum and other immigration services at embassies and consulates around Latin America and other low-income countries.

The U.S. immigration system is rotten in so many other ways that these measures barely scratch the surface. But restoring asylum to something approaching compliance with U.S. and international law, and eliminating some of the worst injustices, would be a significant step towards reducing suffering and increasing fairness for fellow human beings seeking refuge here.

As a model, take the approach to Ukrainian refugees in the U.S. and many other countries. Ukrainians are victims of brutal aggression by Vladimir Putin’s regime, and they richly deserve to be accepted and sheltered without bureaucratic roadblocks. But Latin American refugees seeking asylum in the U.S., along with Afghan, Middle Eastern, African and other refugees, also deserve the same treatment without reservation. Virtually nobody leaves their home and community and risks their life getting to another country without good reason, whether or not they officially qualify for narrowly defined asylum or refugee status. In many areas of Mesoamerica, the Caribbean, and South America, conditions are just as life-threatening and unlivable as in a conventional war zone. And in these places, the U.S. shares a heavy responsibility for nearly two centuries of violence, repression and exploitation under the banner of Manifest Destiny. We can begin to make amends by treating Latin American refugees with the same respect and solidarity with which we treat Ukrainians. And then we need to expand this approach of welcoming the stranger to all other immigrants, with confidence that doing good for them is also helping the whole country and the world to do well.

*                          *                              *

The author

The first immigrant I ever met was my father, who crossed the ocean from Abruzzo to the Bronx as a boy of 12 in 1928. Since then, I’ve been involved with immigrants as a volunteer, friend and relative for most of my seven decades. For the past thirty years, I’ve also written about them – as well as Mesoamerica and the Caribbean, international economics, labor and human rights.

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