Restricting asylum would make the border less secure

Democrats are in negotiations with Republicans to restrict asylum, claiming that it is necessary to improve border security. But new data suggest that restricting asylum will make security worse. 

In May, Biden ended an asylum ban, which used the Trump-era Title 42 public health authority order to put nearly 3 million crossers back into Mexico with no chance to apply for asylum. While his critics predicted disaster, ending Title 42 in May has significantly improved border security.

No single immigration action provoked more apocalyptic rhetoric than pulling the plug on Title 42. Former Donald Trump adviser Stephen Miller predicted that ending Title 42 would “open the floodgates on a biblical scale.” Homeland Security Chairman Mark Green (R-Tenn.) foresaw the decision worsening in “the number of alien encounters and gotaways, which are already off the charts.” Gotaways refer to immigrants who evade arrest. Even many Democrats broke with the president.

In a Supreme Court amicus brief, we at the Cato Institute explained that these predictions lacked credibility. We noted that Title 42 removed any penalties besides being returned to Mexico, which only quickly placed individuals back in the position to cross illegally again. With people recrossing repeatedly, Title 42 caused recidivism to explode, as the Department of Homeland Security (DHS) Office of Immigration Statistics has found. Higher recidivism inflated the number of arrests.

As importantly, since crossers had no reason to turn themselves in to request asylum under Title 42, more immigrants tried to evade detection. Along with higher recidivism, this dynamic led to an explosion in “gotaways” who avoided capture. Gotaways are a much more important measure of border security’s weakness than arrests. Even if many arrested migrants are ultimately released, arrests allow Border Patrol to screen out criminals and other security threats.

Of course, banning asylum does hurt those who aren’t willing to try to evade detection — particularly families with young children — so we expected some increase in arrivals for those groups if they could apply for asylum. The net effect, however, would not worsen the border crisis. Reducing gotaways and repeat crossers in exchange for a few more families would not be, we predicted, bad for border security.

We now know that this analysis was correct. As detailed in a new Cato Institute report, the total number of monthly crossings (gotaways and arrests) has fallen by 15 percent since Title 42 ended.

More importantly, gotaways, or covert crossers, declined by over 50 percent. This is a staggering improvement. Gotaways fell almost immediately, and they remained down despite arrests reaching their prior levels. The rate at which people are evading Border Patrol is near the lowest on record.

Ending Title 42 benefited border security, but other than a few immigration scholars, few people predicted that outcome — which made Biden’s decision to end it all the more surprising and praiseworthy.

Biden has no ideological fidelity to a pro-immigration position. He’s been willing to cave to critics and went along with Title 42 initially. In his first two years, he deported far more border crossers and a higher percentage of crossers than Trump did in his last two years. It was entirely plausible that he would cave again. Democrats were very worried about Title 42's end, and a group of Democrats even signed onto a Republican bill mandating the extension of Title 42.

But when the public health emergency officially ended, President Biden refused to force the Centers for Disease Control and Prevention (CDC) to retain Title 42 — unlike President Trump, who forced them to adopt it in the first place. Even though his own Department of Homeland Security was predicting a catastrophic increase in illegal immigration, Biden stood his ground. He ate the criticism and respected the CDC’s independence, and illegal immigration actually fell.

Of course, illegal immigration isn’t over. Arrests and gotaways are still too high. But the Title 42 episode matters because it shows how the “pro-security” position isn’t necessarily whatever sounds the most draconian toward immigrants. Asylum gives immigrants a reason to turn themselves in to law enforcement, which makes Border Patrol’s job easier.

Its job would be even easier if people did not need to enter illegally to request asylum. Gotaways can occur when agents can't reach the location of the crossers in time to stop them, especially if they are busy processing asylum seekers.

But Customs and Border Protection has capped asylum appointments at legal crossing points at such a low level that barely one in five people crossing can enter legally. The best solution would be to remove this arbitrary cap, which has no basis in law, and let people get vetted to enter lawfully.

America needs security, but it also needs immigrants. Our population growth has reached all-time lows. We have millions more job openings than unemployed people, and we have a massive long-term need for workers as our population ages. Ending Title 42 shows that security isn’t at odds with accepting immigrants.

Politicians create a false choice between a secure and welcoming border. Americans deserve — and can have — both.

David J. Bier is associate director of Immigration Studies at the Cato Institute.