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Title 8 could deter would-be migrants from seeking asylum


In my last column, I wrote about how the increased flow of migrants from countries such as Haiti, Cuba, Venezuela, and Nicaragua are impacting commerce and cross-border traffic at the U.S.-Mexico border. Complicating the matter is the expiration of Title 42, which was enacted during the Trump Administration during the COVID pandemic. This code allowed Customs and Border Protection the ability to deny migrants seeking asylum entry into the U.S. After crossing into the U.S., they are processed quickly at the ports of entry and then returned to Mexico, where they must wait for an asylum hearing. Title 42 was extended during the Biden Administration, and is set to expire on May 11.

The $64,000 dollar question seems to be, “What happens now?” Most people with whom I have spoken seem to automatically think that if the U.S. loses its ability to quickly expel migrants to Mexico, the flow of asylum seekers will greatly increase. Undoubtedly, many migrants believe that it will be easier for them to enter and stay in the U.S. While both of these viewpoints could have merit, a thorough understanding is needed of Title 8, which was in place before Title 42.

Title 42 was federal public health order, while Title 8 is an immigration and border order. Under Title 42, a migrant could illegally enter the U.S. multiple times and be processed and expelled to Mexico multiple times. He/she is not incarcerated or fined. Under Title 8, a migrant who crosses illegally into the U.S. the first time can face a fine or misdemeanor penalty before he/she is deported. Note that under Title 8, the migrant is deported, not expelled. If this same migrant enters the U.S. again, he/she could face felony charges. If these illegal entries continue, the migrant could be incarcerated or banned for years from future entry into the U.S. and asylum. Thus, Title 8 takes a much stiffer approach on repeat offenders.

In spite of the return of Title 8, should we see the flow of immigrants to continue? Probably in the first initial months. Thousands of migrants are already at border cities such as Juarez, Reynosa, and Tijuana. They have given up their lives back home, spent what money that they had, and have nothing with which to return. The Venezuelan migrants especially find themselves in limbo because the U.S. has such bad diplomatic relations with the Venezuelan government. These migrants cannot be easily deported to their country of origin.

The Biden Administration has taken steps to deal with the end of Title 42. Both the State and Homeland Security Departments are publicly declaring that migrants should not make the mistake of thinking that the border is open. The federal government will set up regional processing centers in countries where the greatest number of migrants originate. These centers will determine who is eligible to apply for a visa or asylum in the U.S. Border Patrol will increase holding camps for migrants in the U.S. who are being processed. U.S. Citizenship and Immigration Services will implement expedited asylum screenings. National Guard troops are being deployed to the border.

We can expect holding camps to swell and more to be built. Immigration courts also will see an increased workload. This is disconcerting, because they are already short of judges and personnel. Because migrants will not want to be deported and banned from the U.S. for years under Title 8, they will probably not want to get caught scaling or breaching the border wall. Therefore, we should expect to see more migrants attempting crossings at U.S.-Mexico ports of entry.

This could shift some of the load of the crisis from Border Patrol to Customs and Border Protection (CBP), which processes traffic at the ports of entry. Both agencies are short of agents, but have performed miracles in the past few years in protecting the U.S. and keeping commerce moving. However, cross-border commerce could continue to be affected, and shipments delayed as the shift to Title 8 occurs. This could mean more disruptions in supply chains and higher prices to the consumer.

On the other hand, reverting to Title 8 could deter would-be migrants who see fellow migrants deported and banned from the U.S. and the ability to seek asylum. According to the National Immigration Forum, the average recidivism rate for undocumented migrants under Title 42 was 27 percent, while under Title 8 the average has been 7 percent. A small number of work visas are issued to foreigners each year, and the U.S. will probably not let millions of migrants in based solely on asylum purposes. However, it will probably take a little time to dissuade migrants from arriving at the southern border, and instead persuade them to seek formal channels in order to have a chance to legally come into the U.S.

In the meantime, the Biden Administration and Congress need to set cross party lines and ideologies in restructuring the country’s immigration policy. Both now have the perfect pretense to come together, start a dialogue, and show Americans that Washington, D.C., can still hammer out solutions to complex issues.

Jerry Pacheco is President of the Border Industrial Association and Executive Director of the International Business Accelerator.