The End of Title 42: What's Next for U.S. Immigration Policy?

Evan Banks

You're listening to Policy Currents, a podcast from the RAND Corporation. I'm Evan Banks. Today is May 19th. Last week, the COVID-19 era policy under Title 42 of the U.S. Code that allowed U.S. officials to quickly turn away migrants from the southern border expired. Leading up to that expiration, we saw large numbers of migrants gathering at different parts of America's nearly 2000 mile boundary with Mexico. 1500 U.S. troops were sent to the border for added security. On Monday, I spoke with RAND experts Doug Ligor and Shelly Culbertson. Doug Ligor is a senior behavioral social scientist at RAND and a lawyer with expertise in immigration and border security. Shelly Culbertson is a senior policy researcher at RAND. She's also the director of the Infrastructure, Immigration and Security Operations Program, part of the RAND Homeland Security Research Division. Doug is joining us by phone to give us some background on U.S. immigration law and to discuss the shift in policy that we saw happen last week. Doug, thanks for calling in.

Douglas Ligor

Pleasure to be here with you.

Evan Banks

We're going to talk to Shelly in a bit about the implications of the Title 42 expiration. But first, can you walk us through how we got to where we are today? And let's just start with the basics. So what is Title 42 and why did it expire?

Douglas Ligor

Title 42 is an emergency provision of the U.S. code. What it allows the U.S. to do, what allows the Centers for Disease Control to do, is in an emergency where there is a pandemic like like COVID or there's some other medical or biological emergency situation, it allows the CDC to basically issue an order that closes the borders for for reasons of spread or transmission or other reasons. So because it is an emergency provision, it is, the statutory language really cannot be used when the emergency dissipates or alleviates. So it would be improper to keep Title 42 in place now that COVID has really reached the stage that it has. Or at least that's the CDC's finding.

Evan Banks

Okay. Where did Title 42 come from? It wasn't a it wasn't originally a pandemic era era policy.

Douglas Ligor

No Title 42 is is part of a series of public safety laws. So both state and federal governments have a number of public safety laws related to health that they can implement when in various emergency situations and non-emergency situations as well. And these go back, you know, these statutes go back to decades and decades.

Evan Banks

And so this specifically, this this expiration will affect immigrants seeking asylum in the U.S. Can you describe what that process was before Title 42 was invoked? And sort of what's what's needed to claim asylum in the U.S.?

Douglas Ligor

Sure. So asylum is a different statute. Asylum is covered under Title 8. And the asylum law in the United States is based on the United States's being a signatory to the Human Rights Convention. So the Human Rights Convention allows refugees and asylees to leave states or home countries where they have been persecuted or they have a well-founded fear of persecution. And states agree through the refugee convention to accept those individuals on that basis and not return them a process called refoulement, which would be illegal under the treaty. So in order to claim asylum, you have to establish certain things. You have to establish past persecution based on a one of five protected grounds, and that is race, religion, nationality, political opinion or membership in a political in a in a particular social group. So, for example, LGBTQ+ would be a social group which you could be persecuted and you could avail yourself of protection. So if you establish that that you have been persecuted, then you are you are granted you are granted asylum in the United States. If you have not been persecuted in the past, but you have a well-founded fear of persecution, somebody has threatened you, somebody you know, the tides have turned, you've been.

Evan Banks

Targeted.

Douglas Ligor

In your country, you're being you've been targeted in some way and you establish that, you know, there's a reasonable possibility that you will be persecuted. Then again, that is another way to establish eligibility once you've been persecuted. It's a it's a presumed that you have a well-founded fear of future persecution under under most circumstances. So that's basically how it works under Title 8. And you don't have to enter the country legally in order to claim asylum for for for good reasons. Right? If you're fleeing a country, you probably or in some cases you may not have any documents with you. You may not have your passport, you may not have ID, they may have been confiscated from you. You may have never been issued documents because you're persecuted individual. Right. So historically, we have not held individuals to a standard where they must be admitted to the United States in order to in order to apply for asylum. That changed when Title 42 came along, because now, you know, as a matter of public health, you couldn't be admitted. So it it forced individuals to stay along the southern border who still want to to apply for asylum, but now could not, could not be processed.

Evan Banks

And there was just to clarify, there was no no entry for any individual seeking asylum in the U.S. under Title 42.

Douglas Ligor

There were some exceptions for unaccompanied minors in in some other very, very small exceptions. You know, if if you had been trafficked, there, there was. But by and large, Title 42 to cover just about everybody who was trying to apply for asylum.

Evan Banks

Okay. Are there like quotas for for claiming Title 8 or is it because it's sort of tied into to human rights and then there's no there's no kind of upper upper limit.

Douglas Ligor

So it depends on whether you're an asylee or a refugee. If you're a refugee, you have you have you're claiming persecution or well-founded fear of persecution outside of the United States, not at the point of entry in the United States. So Congress does and can cap those numbers and you're processed in a refugee facility, and then you get a document to travel to the United States, at which point you're admitted as a refugee. Asylees do not have a cap because they are already at a point of entry in the United States. And if they're granted, then they're permitted they're given asylee status and given legal status in the United States, and caps have not been put, generally speaking, on on asylum seekers.

Evan Banks

There seems to be a perception out there that the legal framework around immigration in America is is very like inadequate. And in my own experience with it, it's it's definitely something of like a patchwork quilt. And it's extremely, extremely complicated. Can you talk to that and and sort of why this has become such a such a large, complicated kind of thing that also doesn't seem to work very well. Quite frankly.

Douglas Ligor

Yeah. Oh boy. Where do I begin? This is this is one of the nation's more more complicated issues, and it has been for a very long time. A lot of factors come into play with with respect to immigration. Race comes into play. Right. You know, and race relations come into play in the history of race, in structural racism in the country comes into play. But other other factors come into play, such as economics and, you know, whether there are periods where we feel or certain segments of society feel that the American worker needs to be protected from, you know, an influx of workers that may displace that person. And how do you how do you determine that? Right. Where is where's the right balance for that? There are issues where, you know, at the border certain communities will get flooded and other communities will not. And how do you provide services to not only the immigrants, but the citizens of those communities when these surges happen? Right. So these create a lot of political tensions. And immigration is very much a politically-driven and always has been a politically-driven issue. And, you know, I've outlined it in the past as two basic camps, the sort of the rule of law camp that wants, wants all, you know, all of the rules to be followed to the letter and the humanitarian camp, which wants more discretion with respect to humanitarian concerns. And so there's been a tension for decades and decades between these two groups. And so at some points in our history, our immigration laws get get tougher. And at other points they get they get more humanitarian in nature. And in some cases, you know, in the 1920s, they were outright racist. Right. If you are from a northern European country, you were fine. If you weren't, you were not fine. Right. So all of these factors play into the history of immigration in the United States, and all of it kind of makes it a mess because we continue to not work through the issues of race and economics in a way that is politically would allow for compromise, but also that is science and evidence based. Because if you look at the science overall, immigration has always been good for the United States long term. But intuitively, that really has not changed. So it's but it's difficult to to to sometimes bring the scientific evidence to the forefront when you're dealing with these other very emotional, very politically charged issues that haven't been worked through very competently.

Evan Banks

Exactly. Thank you. So now with Title 42 expiring, are we going to return to the status quo of Section 8 asylum admissions? And and what what has the U.S. Government been doing to prepare for this expiration?

Douglas Ligor

So the status quo is somewhat changed. In February, a rule was announced by the Biden administration to make eligibility for asylum at the border more stringent. And basically what the rule created and it came into effect just before the lifting of Title 42 is that if you try to enter the country unlawfully or you come to a point of entry and you do not have permission to enter the country, it is presumed you're ineligible for asylum. That is a relatively cosmic shift in how asylum law has been practiced for, you know, a very long time since 1980, really, in the United States. So that presumption of ineligibility now requires individuals to get permission, either through an app called CBP One where they they make an appointment with CBP officials at the border to request asylum in in in a more organized fashion. This is again to to prevent a surge and you know what what people framed as chaos, or they needed to have been granted parole before they left their homeland or the country that they were leaving from to come to come to the United States. So, again, you know, if you are if you are if you enter unlawfully and you try to get asylum, there are some exceptions to this rule. The exceptions were if you were an unaccompanied minor. Right, if you had traveled as a family member with somebody who had permission and if you sought asylum, for example, in a country that you traveled through and were denied, that would be an exception to the new rules. So so you can see that the new rule is complicated and it it confused the early reports, or they confused a lot of people who were at the border wanting to apply for asylum, more so than than the normal law, which can also be quite confusing.

Evan Banks

Well, that was going to be my follow up question. Is it realistic to say that they'll have access to the app or that they'll be granted parole from their country of origin? If particularly if they're seeking political asylum? That's sort of like asking for permission to leave from a government that's already oppressing you.

Douglas Ligor

Right. Well, you can go to an embassy or consulate and you get you can get permission to come to the United States. That does happen. Not everybody gets access to an embassy or consulate, as you know, as you can well imagine. Early reports are that it has been difficult to get an appointment using the app because the app is is only, you know, capable of handing out so many appointments. So it essentially does is it meters for the asylum application and asylum applicants in a way that doesn't strain the system too much? That's that's not unreasonable. You only have so many people to adjudicate the asylum claim. Right? It doesn't help to overwhelm the system because you want to make sure that each person has their asylum claim heard. But it is you're not you're not afforded an attorney to apply for asylum. So, you know, my explanation of what it means to undergo persecution or have a well-founded fear, you know, generally isn't isn't explained to anybody, the asylum officer or the immigration judge has to hear the testimony of the individual and fit it into that standard. Whether it fits into the standard or it doesn't fit into the standard. So if somebody comes to the United States and says, well, a gang is after me, that simply is not enough. Even if that gang might do something that's persecutory, if it's not related to the five protected grounds, if it's related to economic extortion, for example.

Evan Banks

But if the gang is targeting someone for being a member of the LGBTQ community, then...

Douglas Ligor

Exactly, that would need a claim.

Evan Banks

Ahead of time, sure. Okay. Interesting.

Douglas Ligor

And there can be mixed claims, right? Like you can extort people who are marginalized, right? So in some cases, it might be an economic claim, but it might also be a race-based claim or political opinion claim. But again, you have to have a hearing and you have to provide people with due process so that they're able to articulate facts because they can't meet the burden if they can't have an opportunity to articulate these facts. There's just no way to to do it otherwise, which makes this this process so complicated. It's not it's it's not an easy adjudication.

Evan Banks

Yeah. Does this system, this this legal framework scale with the surges? I'm assuming that it doesn't is the other...

Douglas Ligor

We've gone from I think in the past five years or so from a couple of hundred immigration judges to hundreds of immigration, you know, 600 immigration judges, I think was last I checked. So so the government is attempting to scale in in resources provided to to CBP and USCIS, who are, you know, key to these the adjudicate the adjudicative parts. The immigration judges are in the Department of Justice, not the Department of Homeland Security. So they would would get resourced through their appropriations. So you can scale. But we we're not we're not very good at predicting and modeling surges and we're not very good at predicting and modeling when those surges dissipate. I mean, there are some factors, right? If the economy in the Northern Triangle improves, you can pretty much guess that the numbers will fall. And there are many social scientists who believe that migration from Mexico could go to zero or very close to zero because the Mexican economy doesn't, you know, in the Mexican political system is better than it used to be. Right. So as as as all of these complex socioeconomic factors change, so does our our opportunity or ability or capability to deal with the asylum and migration issue, whether it's a scale up or scale down. And it's just it's a it's a it's a very complicated, complex challenge for government.

Evan Banks

Doug, thanks for joining us on this call. Really appreciate your your expertise.

Douglas Ligor

My pleasure Evan. Any time. Thanks.

Evan Banks

We just heard from Doug about the legal framework that surrounds the Title 42 expiration and about Section 8 asylum cases. And we're going to turn now to Shelly Culbertson, who's joining us in the studio today to continue the conversation about immigration and the expiration of Title 42 and the impact that that's going to have on on immigration in this country. Shelly has also done a lot of work on immigration in Europe and in migration globally. It's always a pleasure to talk to you Shelly. Thanks for joining us.

Shelly Culbertson

Thanks for having me, Evan.

Evan Banks

In recent years there has been these surges of migrants, including greater numbers of children and families than we've seen before. Can you speak a little bit to where these where these surges come from? Who are the the type of people that make up these surges and what they're looking for in in the United States?

Shelly Culbertson

Yeah. So in the past, a lot of the people who were seeking to cross the border in this way were were single adults from Mexico. And in recent years, we've really seen a change in the demographics of who's coming across the border. So instead of being primarily single adults from Mexico, there are larger and larger numbers of families and children coming from the Central American countries, Northern Triangle countries in particular. And a lot of unaccompanied children as well. And so this this population is very different. And it also indicates that their motivations for coming might be very different. The economic motivations for migration are still there. The COVID-19 pandemic really had a had a very hard impact on Latin American economies. Right now, the U.S. has we have we have a shortage of workers. There's a lot of need for workers. So there's there's a push from Central America and there's a pull from the United States. But in addition to the economic motivations, there are a lot of other reasons why people are migrating. And these these really vary widely. A key one is problems with rule of law and gang violence. What's really shocking is looking at rates of civilian deaths per capita across Central America and then comparing that globally because the gang violence rates in combination with domestic violence mean that civilian death rates and in parts of Central America are rival those of Middle East war zones. So Syria, Libya, Iraq, etc. We don't think of these places as war zones because it's not a state conflict. But a lot of people are fleeing this this terrible violence that they've been exposed to. In addition to the conflict and the economic motivations, there are also climate change motivations. So how this has manifested itself is in a couple of ways. So one has been disasters. So Hurricanes Eta and Iota happened a couple of years ago and the response, the recovery effort was was pretty tepid. So when people's homes are destroyed, communities are destroyed, livelihoods, ability to get work and so forth. That has served as a motivating factor for people to leave as well.

Evan Banks

So, Shelly, what have been the what have been the effects of this, this increased migration to the United States?

Shelly Culbertson

Well, there have been a lot of impacts on the border communities and some other communities that are that are hosting migrants. So I think we've all seen in the news New York City and some of the estimates that they've been making, I'm estimating in the next couple of years they'll spend upwards of $4 billion in and shelter, education, health care, etc., for the migrants. A lot of border communities are quite overwhelmed. They run out of housing, health care is stretched, lots of people camping out in the streets, and it can be very challenging for host communities when dealing with a migration influx, even when host communities are very welcoming of the of the migrants. Having lots of people enter a new community with significant needs can be quite challenging. And we see this and many other cases around the world. So for instance, the Ukrainian refugees have fled Ukraine, some some 8 million of them. And there are many communities in Poland that are really struggling. For example, a Warsaw school population increased 45% after the refugee crisis. How do you find school spaces for all those kids? Right. The same thing seems to be happening in our in our own communities. With the Syrian refugee crisis in the Middle East, we also saw similar pressures on host communities, in particular near borders, where schools became overwhelmed. There would be so many needs, so much need for school spaces that schools would often have to put in double shifts. There are big demands on health care systems, in particular mental health. Since people fleeing under these circumstances are often traumatized and so forth. So the circumstances that we're seeing in our own border communities and destination host communities like New York, Denver, Colorado, etc., have parallels in these other mass migration situations globally.

Evan Banks

Can you describe more of like what we're seeing in those communities in terms of the education systems being stressed, the need for more teachers and more, more seats in classrooms?

Shelly Culbertson

Yeah. At RAND we did a study on education of undocumented and asylum seeking children in the U.S. and then also have done some studies on refugee children in the Middle East. And I think there are a number of parallel trends. But to describe to you a little bit about what we found in our study on in the U.S., on this population of kids, we tried to model and understand how many such children had crossed the U.S. Southwest borders in fiscal year 2017 through 2019. And what we found was that it was pretty close to half a million, actually, a little bit over half a million children had crossed the border. Then, not all of them stayed, some returned, about half a million stayed, with 321,000 children enrolling in U.S. public schools. And that's just from those three years alone. That doesn't include children who arrived before that or after that. And so what that has meant is that in many cases, children and families are migrating to particular cities or school districts and have have led to huge increases in in that school population. So the Los Angeles school district and the Houston school district both experienced an increase of some 20,000 to 30,000 children just in those years alone. So these are really big numbers, and to to keep to keep the student teacher ratios the same, those school districts would have had to have hired a couple thousand new teachers. So these are really large numbers that have a lot of spillover effects that we're often not seeing when we're just focusing on what's happening at the border.

Evan Banks

Right. And that's just in the education system, too. There's, I'm sure, lots of other effects that that RAND needs to study. So those are the effects here in the United States. But there's also economic impact and demographic impacts in the countries that they're leaving as well in Central America. Can you speak to those a bit?

Shelly Culbertson

Yes. So imagine a situation where large numbers of your of your population and in prime working age pick up and leave the country so that a migration crisis not only impacts the the destination country, but it does the source country as well. So those countries are losing their they're losing their people, they're losing their workforce. It decreases school population. It decreases the skill base that they've that they've got the tax base. And so mass migration situations really have a lot of upstream and downstream effects that we're often not taking into account. And particularly when when when places that need their people are are becoming in some ways hollow, hollowed out, losing, you know, significant percentages of of population. And that that's not just a situation that we're seeing in mass migration in Latin America. We see that another refugee situations as well. So some, for example, some quarter of Ukraine has has left the country due to the war. Some two thirds of Syria's population was displaced either internally or externally. So I think that the massive numbers that we're seeing on the U.S. southern border are certainly an American issue, but we're seeing this trend repeated in multiple places around the world with parallels and perhaps are some some some policy takeaways that these different circumstances can draw upon.

Evan Banks

Some of your previous work draws on a situation that was very similar to this that happened in the European Union. Can you describe that situation for us and what European host nations did to respond to the surge in migration?

Shelly Culbertson

Yeah. In 2015, there was a what the EU called a migration crisis with a lot of refugees from the Middle East and both refugees and economic migrants from sub-Saharan Africa entering the EU borders. I think we all saw images of people getting on boats, very unsafe boats crossing the Mediterranean and then ending up in the EU. So that situation really has a lot of parallels to, I think, what we're seeing at the U.S. southwest border as well, so that the numbers are pretty large. They had some 3.4 million, what they call them, irregular migrants between 2009 and 2017. And then they took a number of steps to decrease the migration. But it had a lot of a lot of political impact on the EU. That migration led to support for for a number of far right parties, leading to some near misses in elections. It's led to questions about labor markets and it was somewhat costly. It also led to a lot of debates about EU humanitarian values, identity and so forth. So it was a significant policy challenge that the EU dealt with this in a number of ways. They came up with an individual country approaches to accepting asylum seekers. They kept trying but failed to come up with a common asylum approach in a way that almost seems parallel to how our American states and political parties are struggling to come to come to terms with a common approach on a on a on a new set of laws. They use their budgets to support refugee integration in places with in countries where there had been a lot of acceptance of the migrants. Germany in particular, took a lot of the refugees from the Middle East. They took a number of steps to strengthen their borders. They strengthened Frontex, which is somewhat similar to the U.S. Coast Guard, increased its capacity to intercept boats and turn them back to try to reduce migration. And then it the EU also changed the direction of its foreign policy in many ways. It went from having a foreign policy for developing countries that was mainly geared towards supporting EU humanitarian values to switching to to using EU resources to stem migration, helping countries along migration paths to to reduce crossing of their borders. So the EU took those steps. It did reduce migration, but it also led to multiple discussions about about EU identity. And how to the extent to which they were able to both meet their rule of law goals while maintaining humanitarian values.

Evan Banks

Were they able to successfully balance those those two? They're not like opposing goals, but I guess what I'm asking is sort of how was all of this resolved? Was there just sort of the surge, the surge in migration ended because of socioeconomic factors in in the originating nations that no longer existed. So migrants stopped coming to the EU, or?

Shelly Culbertson

A lot of the the migration to the EU was stopped because of increased border controls as well as financial development. So yeah, it was a mix, it was a mix. But as well as support for the the source and transit countries in reducing migration.

Evan Banks

I'm curious how American values play into all of this. Obviously, there's a long history of immigration in this country, but the debate is so highly contentious now, what are those values that are driving this debate and why is it so complicated?

Shelly Culbertson

I think these situations are so complex because they're involving so many values and interests and so forth. So on the one hand, a border, enforcing a border is about rule of law. And many people want to view their their border as as orderly, not chaotic and as functioning as as a border. On the other hand, there are a lot of humanitarian values. People look at the families coming over the border, the children, they want to be able to help. They want to be able to stand by national laws and values of of helping refugees and other people in need. There are also financial considerations. It costs a lot of money to support new people who need to adapt to the United States. So they need to have provision of shelter and food. Their children need to be educated, there are health care costs. This is this is quite costly. It also provides a huge strain on host communities when lots of new people enter a new community and the community does not have sufficient infrastructure or resources to take care of it. At the same time, there are also economic opportunities that the United States has long been, as we've had the expression, a nation of immigrants and immigration has helped really support the American economy. We have a worker shortage and very low unemployment at this point. And there there are opportunities. There are some states that have actually proposed trying to offer their own visas so that they can access additional people who can join the workforce. So there there are a number of competing interests, and then all of that becomes tied up in and various, in political rhetoric, which makes it very difficult to solve, in large part because people are awaiting these these different values or prioritizing their values and interests in different ways.

Evan Banks

Looking ahead to what might happen next, is there is there like a worst case scenario and a best case scenario for how the situation at the border right now is playing out?

Shelly Culbertson

I think a key risk that policymakers face when looking at the border is thinking that border security and border policies alone are going to address the migration pressures at the border. They won't. The there are causes much bigger than just border policies that impact who who wants to come to the United States and how many. As I mentioned, there's there's poverty, violence, climate change, disasters, etc. that that are all driving migration, many of which are just out of control of the United States. So a a good case scenario is that some of these terrible pressures that are making people want to leave their homes and take these really difficult risks with their children to come to the United States, that that some of these pressures would would become reduced and people would not need to leave. And then and there would be a more orderly immigration system with manageable numbers under current policies. A worst case scenario is migration pressures increase to such an extent that the the border becomes overwhelmed with political gridlock that makes us unable as a country to develop reasonable policies to manage those migration surges. So I think the worst case scenario is us as a country finding these issues so complex and fraught that we are unable to develop solutions.

Evan Banks

Yeah, it certainly seems to be one of the more intractable challenges in American politics creating a system that's both orderly and serves the needs of the people that it needs to serve. Thanks for your work, Shelly. Making one of these intractable challenges perhaps a bit more tractable. Unfortunately, that's all the time we have today. Shelly, thank you again so much for joining us and for sharing your thoughts and your work.

Shelly Culbertson

Thank you very much, Evan.

Evan Banks

That's it for this episode of Policy Currents. You can find links to some of the RAND research discussed today in the show notes at rand.org/podcast. We'll see you next week. RAND is a nonprofit institution that helps improve policy and decisionmaking through research and analysis.