After opposing Title 42, why has Biden expanded it?

The Biden administration has been saying for years that it wants to get rid of Title 42.

Why, then, has it been expanding use of this policy?

“Title 42” is shorthand for what is effectively an abuse of a public health authority to circumvent U.S. asylum laws. Beginning in March 2020, the Trump administration used an obscure public health statute to automatically expel migrants without allowing them to first apply for asylum, as is their right under U.S. law and international treaty; President Donald Trump's pretext was that these immigrants might spread COVID-19.

Human rights advocates and public health experts alike criticized the policy as probably both illegal and lacking a credible epidemiological purpose. Whatever its intentions, it didn't reduce stress at the border; instead, it increased attempted border crossings, as many people expelled without consequence or due process turned right around and tried again to enter the United States.

That is, if they weren't kidnapped, tortured, raped or otherwise violently attacked first. This happened in more than 10,000 cases of expelled migrants, as documented by Human Rights First.

As a presidential candidate, Joe Biden pledged to restore the integrity of the asylum system. He promised that anyone qualifying for an asylum claim would “be admitted to the country through an orderly process.” As president, though, Biden dragged his feet in terminating Title 42. He finally agreed to end the program this past spring.

But termination has since been delayed by complicated court rulings, which Biden officials seem to have fought only halfheartedly.

This week, the Supreme Court determined that Title 42 must remain in place at least until the court decides a related issue (probably in the coming months). Given the Biden administration's claims of wanting to end Title 42, the president should theoretically be mad about the delay.

Instead, Biden officials seem to have seized the opportunity to make yet more immigrant groups subject to automatic expulsions.

“The administration has taken the position in court that they can no longer justify keeping Title 42 in place, given the lack of any public health justification,” said Lee Gelernt of the American Civil Liberties Union, which is challenging the expulsion policy. “If you look at the administration's actions, however, it's clear they're fine with Title 42 remaining in place.”

In October, the Biden administration announced it would begin using Title 42 to expel Venezuelans, who had previously been exempted due to difficulties in deporting them back to their (unstable) home country. And on Wednesday, Reuters reported that the administration plans to soon use Title 42 to expel Cuban, Nicaraguan and Haitian migrants caught at the southwestern border, too.

To be clear: Resources at our southern border are strained. Communities there have been overwhelmed by an influx of migrant families needing shelter, food and other support. But the solution is not to close our borders to asylum seekers, in violation of U.S. human rights obligations.

So what should the administration and Congress be doing instead?

Among the more obvious steps: Send more resources to border communities, including to the many faith-based organizations assisting migrants. Beef up the asylum system so that cases can be adjudicated more efficiently and expeditiously.

Also, enable asylum seekers to apply for work permits much earlier — currently they must wait six months before they can even submit an application — so they can achieve the financial independence necessary to leave shelters.

Most important: Create more legal, safe, orderly pathways for people to come to the United States, both to seek protection from persecution and to pursue economic opportunities.

Americans often complain that immigrants should come here “the right way,” but for many migrants, showing up at the border unannounced and turning themselves in is the only legal pathway available. If given options to come here that don't require paying gangs and crossing deserts, people would gladly take them — which would in turn alleviate stress at the border.

To its credit, the Biden administration has taken baby steps on that last recommendation. Its Uniting for Ukraine program, for instance, has vetted and “paroled in” more than 82,000 Ukrainians and their immediate relatives abroad, which has discouraged Ukrainians from showing up en masse at our southern border (as had been the case early in the war). A similar but much more restrictive program was created for Venezuelans; a parallel program is reportedly in the works for Cubans, Nicaraguans and Haitians.

But again, these additional legal pathways can be created while still upholding the ability to apply for asylum at our borders. That's what U.S. law requires - and what Biden has, repeatedly, promised to do.