Opinion

As Title 42 Ends, We Need to Look Towards Long-Term Enforcement And Reform

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Posted: Mar 31, 2022 12:01 AM
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As Title 42 Ends, We Need to Look Towards Long-Term Enforcement And Reform

Source: AP Photo/Eric Gay

Editor's note: This piece was authored by Mike Holmes.

The Center for Disease Control (CDC) is currently determining whether to renew, change, or end Title 42 — a Trump-era public health policy allowing for the immediate removal of migrants encountered by the border patrol. According to Axios, intelligence analysts predict a new mass-migration event of potentially 170,000 migrants if the policy expires. DHS prepared a range of predictions from 6,000-18,000 migrant encounters per day. Immigration advocates encourage Title 42’s end, claiming it denies the opportunity of asylum for many and can expose migrants to violence and kidnappings. However, some fear the policy’s expiration removes the “only functioning mechanism” preventing mass migration in a fiscal year already on pace for approximately 2,000,000 border encounters. The debate on Title 42 once again highlights the need for congress to pursue comprehensive immigration reform. Bills such as the Dignity Act can serve as an example of promising legislation. 

The CDC implemented Title 42 under the Trump Administration in March 2020 with the purpose of slowing the spread of Covid-19. While doctors at the CDC questioned its public health efficacy, Title 42’s use as de facto enforcement at the border is undeniable. Since its introduction, Customs and Border Patrol removed about 56% of migrants encountered at the Southwest Land Border under Title 42. Such reliance has led some Senators to appeal for its continuation until DHS “implement[s] a sufficient plan to maintain a humane and orderly process in the event of an end to Title 42”. The impending change, whether now or in the future, underscores the need for consistency.  

Introduced in February by Florida Rep. Maria Elvira Salazar, the Dignity Act addresses the currently unauthorized population, border security, and labor. Most importantly, it provides consistency. The Trump administration implemented 472 executive actions related to immigration according to the Migration Policy Institute. In Biden’s first year, he issued 296 related to immigration — 89 of those attempted to undo Trump-era policies. This policy whiplash constantly changing enforcement priorities, asylum policies, and options for legal status make confusion the norm. Additionally, significant changes can contribute to the mass migration events everyone wants to avoid. Michael Clemens of the Center for Global Development attributed “erratic swings in U.S. policy” as one potential cause of short-term mass migration. Hence the concern over Title 42’s expiration. 

Legislative reform like Rep. Salazar’s bill would provide consistency and prevent some of these frequent policy shifts. 

The Dignity Act also attempts to address enforcement through securing the border and the interior, and addressing root causes of irregular migration in the countries sending migrants. While enforcement and border security may make immigration advocates squeamish, they’ll play an important role in any reform package. 

Research by Ryan Briggs and Omar Solodoch found a correlation between increased border security and higher support for immigration, with lower security associated with lower desired levels. The reaction to the Muriel boatlift of 1980 from Cuba also proves instructive. During this mass migration event, 125,000 Cubans came to Florida without pre-vetting over a five-month period. According to immigration and law scholar David Martin, this created a backlash against the recently passed and popular Refugee Act of 1980. A perceived lack of control can influence public opinion. Enforcement or at least perceived control may serve as prerequisites for permissive immigration policies. Comprehensive reform can provide for that. 

Yet, the key is to get enforcement right, not to merely enforce. Martin distinguishes between actions that are evil regardless of law — like murder — and others that are wrong solely because they’re prohibited. Unauthorized immigration usually fits into the latter category, as the actions of moving from city to city or working a job are generally praiseworthy or harmless. Immigration enforcement agencies must recognize this distinction and act justly. 

We may want to prevent asylum fraud, but currently our attempts to prevent it can deny human rights and turn away legitimate asylum seekers. We may also want to have interior enforcement, but it can provide its own complications. How should we think through a situation where a long-term unauthorized immigrant parent with U.S. citizen children faces deportation? How do we weigh the good or ill of enforcing a broken prohibition against the children’s long-term well being, and the good or ill in breaking up a family? What’s the resulting societal effect of enforcing these policies? Serious enforcement must consider competing goods. And policy like the Dignity Act would provide legal options that could prevent this kind of family-separation from occurring. 

As Title 42 comes to an immediate or future end, the U.S. should look long-term. The Dignity Act is not perfect, but it can serve as a starting point for debate. Consistency and wise enforcement will prove more beneficial to citizens and migrants than theoretical compassion or undiscerning harshness. Wherever you find yourself on the spectrum from open borders to absolute restriction, some version of your opponents will win elections some day. Pass reform that can survive the political revolving door.  

Michael Holmes is a contributor for Young Voices. He has his Master's in International Affairs from American University and volunteers at an immigration legal aid clinic.