Nov 29, 2022 - Politics & Policy

Scoop: Biden administration eyes border overhaul as Title 42 ends

Border patrol agents take people into custody next to the U.S.-Mexico border fence

Border patrol agents take people into custody next to the U.S.-Mexico border fence. Photo: David McNew/Getty Images

Top U.S. officials are considering drastic measures — including barring some asylum seekers and surging prosecutions of illegal border crossings — in preparation for an end to the pandemic-era Title 42 border policy, Axios has learned.

Why it matters: Some of the ideas under serious consideration echo controversial immigration policies from the Trump administration. Others could expand legal avenues for migrants and asylum seekers in the region to enter the U.S.

  • That some of these approaches are being considered at the highest levels of government reflects the Biden administration's desperation to get a handle on unprecedented efforts to cross the U.S.-Mexico border.
  • Top officials from the White House National Security Council, Department of Homeland Security, State Department and Justice Department have been involved in the discussions. Some of the potential actions would require cooperation from multiple agencies, according to two U.S. sources familiar with internal discussions.

Driving the news: A federal judge is forcing border officials to stop using Title 42 on Dec. 21.

Catch up quick: The Trump-era policy — continued under the Biden administration — cites public health concerns to allow Border Patrol to immediately expel migrants at the border without the chance for asylum.

  • U.S. officials anticipate the loss of the tool and the narrative that there are "open borders" will lead to a jump in the already-high number of border crossings. Preparations for this scenario have been underway.
  • Actions to expand legal pathways for migrants and asylum seekers and crack down on people who do not enter the U.S. at legal entry points were discussed in detail as recently as a Cabinet-head level meeting on Monday, according to the two sources familiar.
  • Final plans are still in flux.

The intrigue: The planning comes as House Republicans gear up for investigations into the administration's handling of the border — and a potential impeachment inquiry into DHS Secretary Alejandro Mayorkas.

What they're saying: "As we prepare to transition to the next phase of our work to manage the border in a safe, orderly, and humane way, the Department of Homeland Security will continue to double down on these proven strategies," a Biden official told Axios, listing various efforts by the administration to tackle irregular migration.

  • "At the same time, we’re eyes wide open to the reality that, despite all the progress we’ve made, we’re continuing to work within the constraints of a decades-old broken immigration system that Republican officials refuse to allow us to fix," the official added.

Details: Officials are moving toward a multi-pronged approach involving both carrot-and-stick domestic measures and continued diplomatic requests for countries to do more on asylum and border controls. Two measures being considered appear similar to controversial Trump policies.

  • One proposal would bar from asylum single adults who illegally cross the border and have not first applied for legal pathways offered by the U.S. or protection in other countries they traveled through. They would be placed in the expedited removal process.
  • There would be exceptions for extreme circumstances, although the specifics of those exceptions are unclear.
  • Another proposal calls for a surge in criminal prosecutions for single adults who have done nothing other than illegally cross the border — with a focus on those who evade Border Patrol. One source, however, said this would be a tough sell for the Justice Department.

To incentivize people to apply and enter the U.S. legally, officials are looking at raising the 24,000 person cap on the number of Venezuelans who can be paroled via a new process started last month. The process forces back to Mexico those who instead attempt to cross the border illegally.

The perceived success of this program has inspired much of the administration's planning for post-Title 42, sources said, indicating the program is set to continue even without Title 42 as the mechanism for returning people to Mexico.

  • The number of Venezuelans attempting to cross the border has dropped significantly since its implementation, according to DHS officials.
  • Officials are looking to expand the program to Nicaraguans, who like Venezuelans are often difficult to return to their home country due to frosty government relations. Any expansion would greatly depend on cooperation with Mexico or other countries to host people the U.S. kicks back.
  • Officials are also eyeing an increase of refugee resettlements from the Western Hemisphere as another legal pathway for migrants to pursue before they can access the asylum process at the border.
  • Lastly, the administration wants to use an app owned and managed by Customs and Border Protection to allow migrants to schedule a meeting at a legal entry point ahead of time, according to one source with direct knowledge of the idea.

Reality check: The volume of people already attempting to enter the U.S. at the southern border will complicate any efforts to overhaul policy.

  • Limited space and resources at Border Patrol stations, detention spaces or Mexican shelters could still prompt officials to release people into the U.S. while they await lengthy immigration proceedings.
  • Some of the proposals eyed by the administration would require significant resources and coordination with foreign governments to get off the ground.

The bottom line: Stretched-thin U.S. agencies find themselves preparing for another potential surge of migrants and asylum seekers at the border.

  • Meanwhile, policymakers are yet again trying to thread the needle — enforcing order and immigration laws while creating a humane system for those seeking humanitarian protection.
Go deeper