The year 2023 is shaping up to be an important one for U.S. border policy, with a major Supreme Court decision on a controversial pandemic-era immigration rule pending, and a Republican majority in the House of Representatives expected to hold tough oversight hearings that many believe will end with the impeachment of the secretary of the Department of Homeland Security.
The U.S. enters 2023 coming off a year of record numbers of enforcement actions by Border Patrol agents against individuals crossing into the U.S. without legally required documents. In the 12 months ending in September, there were 2.77 million such encounters, up from 1.72 million in the previous 12-month period.
Since September, the situation on the border has worsened. The most recent data from U.S. Customs and Border Protection shows that agents made 233,740 arrests in November, the highest on record for that month and one of the highest monthly totals ever.
The Biden administration has increased resources dedicated to border security, but federal, state and local law enforcement agencies are still frequently overwhelmed as they try to process surges of migrants that can run to the tens of thousands per day.
Title 42 decision
During the administration of former President Donald Trump, the Department of Homeland Security instituted a new policy under Title 42 of the U.S. Code of Federal Regulations, allowing public health officials to suspend normal immigration rules in the event of a public health emergency.
Under U.S. law and in agreement with international treaties, it is legal for a non-U.S. citizen to enter the United States without a visa or other documentation if their purpose is to present themselves for a claim of asylum, typically granted to certain classes of refugees or political dissidents.
During the COVID-19 pandemic, the Trump administration issued a new policy allowing border officials to deport individuals, even if they requested asylum, on the grounds that they might be infected with the virus and therefore posed a public health risk.
Under Trump, border officials used the new Title 42 authority vigorously, denying entry to thousands of asylum-seekers every month. This reduced the number of migrants entering the U.S.
However, it may also have increased border officials' workload, because unlike people who are deported under other legal authorities, there is no penalty for an individual denied entry under Title 42 if they make a second attempt to enter the country.
To the extent that the administration implements Title 42, it may ease some of the pressure on agencies trying to process asylum claims. However, critics warn that the administration’s creation of exceptions to the rule, allowing many people to enter the country despite it, is only going to drive the number of migrants higher.
Court challenges
The Biden administration has a complicated relationship with Title 42, claiming to want it ended, while simultaneously using it to deport tens of thousands of migrants.
Different federal courts in the U.S. have made contradictory rulings on cases related to the policy. Most recently, a group of states’ attorneys general banded together to appeal a ruling striking down the policy.
The Supreme Court this week, over the objections of several of its members, agreed to a stay of the lower court ruling, leaving the authority in place until the high court can rule on its legality.
Supporters pleased
The Supreme Court’s decision was greeted with a certain amount of relief by supporters of increased border security, though they pointed out that by creating multiple exceptions to the policy, the Biden administration has reduced its effectiveness.
“Title 42 being in place helps some, but we're still in a historic crisis,” Tom Homan, the former acting director of U.S.
Immigration and Customs Enforcement under Trump, told VOA.
Even with a surge of resources to the border, he said, the Biden administration’s various exceptions to Title 42 have increased the number of migrants being released into the U.S. to await adjudication of their asylum claims, a process that requires Border Patrol agents to turn their attention away from stopping people illegally crossing the border.
“There are some sectors that have pulled 70 to 80% of the agents off the line — off patrol — to come in [to] process,” said Homan, who is now a visiting fellow at the Heritage Foundation’s Border Security and Immigration Center.
Detractors angry
Immigrants’ rights activists were unhappy with the Supreme Court’s decision to stay the decision striking down the Title 42 order, pointing out that COVID-19 numbers are much lower now than they were when the policy was instituted and claiming that the retention of the rule — on the grounds of protecting public health — is an anti-immigrant policy.
They also note that asylum seekers forced back across the border, typically into Mexico, are frequently the victims of violence and abuse.
“Human rights investigators have documented over 13,000 violent attacks against people expelled to Mexico under the Biden administration, a figure that represents just the tip of the iceberg,” Melissa Crow, director of litigation at the Center for Gender & Refugee Studies, said in a statement. “With the end of Title 42 once again delayed, this toll will rise.”
However, Angela Kelley, chief adviser for policy and partnerships at the American Immigration Lawyers Association, told VOA the delay might represent an opportunity for the Biden administration to try different approaches.
Kelley said the administration has already created a parole system for migrants fleeing Venezuela, and noted that since its inception, the number of Venezuelans entering the country illegally has declined, while the number entering legally has climbed.
“I think it provides them a window of time to test whether the theory that if you open up legal channels, people will wait to come lawfully,” she said. “The thinking is that people would much rather come with a visa than with a smuggler, for obvious reasons.”
Republican Congress coming
With the new Congress expected to convene next week, Republicans will take control of the House of Representatives, giving them the authority to conduct oversight hearings and investigations. The Biden administration’s immigration policy is expected to be a major area of interest.
Multiple GOP lawmakers, angry with the way the administration has approached immigration policy, have accused Secretary of Homeland Security Alejandro Mayorkas of violating his oath of office and called for his impeachment.
Homan, of the Heritage Foundation, said that he expects to see articles of impeachment filed but that they may not be released until Republican-led committees have had the opportunity to conduct oversight hearings.
While House Republicans cannot, by themselves, pass legislation, Homan said, oversight hearings might generate support from Democrats in Congress as well.
“A lot of damning information is going to come out of the oversight hearings, and I think the Democrat side of the House won't be able to ignore it,” he said.
On Friday, Republican House leaders released a list of legislative proposals they plan to introduce in the first two weeks of 2023.
Included on the list is the Border Safety and Security Act, which would make it legal for border officials to deny entry to individuals without proper documents during periods when federal authorities do not have the capacity to detain them.
