Caitlin Dickerson on the Expiration of Title 42

GOLODRYGA, HOST: Well, our next guest has spent years covering immigration, and just this week, won the Pulitzer Prize for her reporting in “The Atlantic”. The awards board said that Caitlin Dickerson’s cover story, “We Need to Take Away the Children,” was a compelling account of the Trump administration policy that forcefully separated migrant children from their parents. And Caitlin joins me now from New York.

Caitlin, thank you so much for joining us. Congratulations on the much- deserved award. I know you’ve been covering this piece (ph) for so longer, you’re the perfect person to be talking to on this momentous day. First, let me get you to respond to what you’ve been hearing from Rosa, and I’m sure from your reporting as well, that we don’t, in these early hours of Title 42 having been lifted, don’t yet see much chaos along the border. What do you make of that?

CAITLIN DICKERSON, STAFF WRITER, “THE ATLANTIC”: Sure. So, thank you so much for the congratulations and for having me. I have to say that I am not surprised by what your reporter is seeing on the border today. Where to begin, really? Title 42 is just one of, literally, dozens of band-aid policies that administrations, both Republican and Democrat, have applied to the border since 9/11. That history is traced in the article I wrote that you referred to.

So, you know, under the Trump administration, which was really desperate to curtail the number of people requesting asylum, Stephen Miller, who is President Trump’s chief immigration advisor, he scoured federal law and looking for ways that the president could bypass Congress and shut the border down himself. I documented this on a front-page story in “The New York Times.” He finds Title 42, he tries to put it in place initially based on small public health issues, outbreaks of things like lice and the flu. And White House lawyers tell him, no, you know, this isn’t serious enough to invoke this public health rule.

And so, when the coronavirus pandemic comes around, it actually offers in opportunity to Miller that the Trump administration pushes forward Title 42, kind of, under the guise of a public health concern. But it was really just an attempt to minimize the number of people seeking asylum. But here is the problem with band aid solutions that cut off access to a portion of our immigration system but not the entire thing. When Title 42 cut off access to asylum, illegal crossings rose really dramatically. They had been very low, because prior to Title 42, most people crossing the border were turning themselves over to border agents and it requesting asylum. So, illegal crossings closed.

Now, we have Title 42 lifting, which affords some people access to asylum again, but the Biden administration attempting to replace it with yet new band-aid solutions that I think, as you mentioned, are both being challenged in court, and I think are just not going to meaningfully address the much more powerful factors. Those that draw people to the United States are very significant labor shortages, American employers who are frankly desperate to hire migrants.

And then, on the other side of the border, factors like climate change, instability, violence, severe hunger, that are pushing people to the United States, these minimal policies really are no match. But in terms of the quiet that we’re seeing on the border today, it’s a very typical for a surge of migration to occur right before a transition in administration or a change in policy. Those moments offer smuggling organizations, the opportunity that, you know, basically start a fire sale and say, hey, everybody, you need to take our services because things are changing. And then, the change takes place, numbers go down, this is very much typical and not surprising. And so, that’s kind of why I’m trying to take the opportunity to draw the conversation to our bigger immigration issues and not just the border on a day-to-day basis.

GOLODRYGA: It’s so important that you just explained it the way you did and laid it out the way you did, because clearly this is an issue that’s been grappling, you know, multiple administrations, both Republican and Democrat. And it’s notable that the difference it makes when a candidate is seeking the presidency as opposed to when they’re actually in office. Because then-candidate Biden was really campaigning harshly against Title 42, and yet here we are, two years into his administration, and finally you see this program lifted. I do want to play a sound from the president who is under no illusions that this process is going to be without chaos. He addressed it and said as much just earlier before this expiration. Let’s listen.

(BEGIN VIDEO CLIP)

JOE BIDEN, U.S. PRESIDENT: So, it remains to be seen, it’s going to be chaotic for a while. And as an example, as I raised in the meeting, when I said, well, we’re going to cut and no spending more money. And what they’ll have is, if you cut — if you’re going to cut people at the border, you’re going to cut agents at the border. We need more at the border, not less at the border.

(END VIDEO CLIP)

GOLODRYGA: So, you’re right to describe these policies are real — is really band-aids. And what needs to happen is Congress needs to get its act together and on a bipartisan basis, really enact significant change here. Without that, once again, we are seeing this president and administration taking unilateral action.

Can you just explain for our viewers the difference, because there have been criticisms, from both Republicans and Democrats, about this policy that has been introduced by President Biden looking quite similar to the policies that had been enacted by his predecessor.

DICKERSON: Absolutely. So, I think one of the things that the Trump administration created, you know, former President Trump was so focused on immigration and immigration policy that he, sort of, made it seem to the American public like the president sets immigration laws which, of course, is not true.

So, what presidents can do is issue memos, issue regulations that chisel out different ways in which the existing set of laws are applied. Many times, you know, presidents will attempt to go too far and that’s what the ACLU, which is challenging the Biden administration in court now contends it’s the same thing that they argued against ways in which the Trump administration eroded the asylum system. So, the baseline, an important thing for people to understand, is that the United States immigration laws are very outdated. They have not been updated in decades and they don’t address the current geopolitical realities. They don’t address the circumstances that are drawing people to the United States, nor do they address those poll factors I mentioned earlier. You know, the need for migrants who, you know, ideally would arrive in the United States in a safe and legal way.

But because the Trump administration, as I mentioned, just got so much attention for the president’s own focus on immigration. The Biden administration, I think here, is really operating from a position of fear. From a concern about losing moderate voters who are worried about chaos at the border. And let me be very clear, in no way do I want to minimize the number of resources, the amount of resources that are required to process large numbers of people crossing the border. That’s a very significant.

But what I’m saying is that, I think, a fear in the Biden administration about picture that depict chaos is really preventing meaningful progress in the way of updating our laws to address these macro issues rather than just, you know, worrying day-to-day and trying to keep those border numbers as low as they can on a daily basis.

GOLODRYGA: Can you talk about some of the specifics that this program holds. And, you know, it raises the question that some of its critics are saying that this is, in a sense, a ban on asylum, similar to what Trump had in his policy. And the Biden administration is quick to fight and clapped back on that claim, saying that no. That while they do maintain that the asylum seekers have to seek asylum in a separate country before coming to the United States. That there is a variety of other government services. That they have expanded a parole program leading up to 30,000 Cubans, Haitians, Nicaraguans, Venezuelans, and I believe even Ukrainians. But that’s based on a U.S. sponsor, right? Sponsoring them. So, they would require more resources than the majority of these migrants. Can you just give us more detail on what this administration is proposing?

DICKERSON: Absolutely. I’m glad you asked. This is a very important question. So, stay with me here, I’m going to talk about history for a moment. But since World War II and the response to the way that the United States and other western countries responded to World War II, when we actually turned away Jewish refugees fleeing the holocaust based on the argument that they simply hadn’t applied, hadn’t gone through the right legal process and turned people away to their deaths. That led to a U.N. convention on refugee resettlement and eventually the establishment of American asylum law, which since the 1980s has held. If you set foot on American soil, you are entitled to apply for asylum status. It comes from this history of not wanting to repeat the same mistake that the United States made historically. That has been the law of the land.

And the Trump administration began eroding at that system by coming up with things like the Remain in Mexico policy with Title 42, which was always a temporary pandemic related measure. But what the Biden administration is doing now, with new restrictions it’s imposed, is doubling down. And it’s a very, very meaningful shift in U.S. policy that lots of academics and experts are deeply concerned about. I mean, it’s effectively 80 years of evolution and progress being turned back and we’re changing the rules now.

So, it’s no longer the case under these Biden administration policies that they remain in place that anybody who sets foot on American soil is entitled to apply for asylum. Something that lots of advocates are dismayed about and that’s why they’re challenging it. You know, they said — they had hoped that today, the United States will be going back to joining the rest of the world and a having, not every single country, but those that came to the same conclusions after World War II as the United States did. You know, having a legal system that allows for people to apply for protection and access it.

What we have instead is new rules that require people to apply in advance. And if they do not get advanced permission to enter the United States, they face a legal bar. Not only that, but many will have to show that they tried to apply for asylum elsewhere if they transited through countries before arriving at the United States.

And as somebody who spends a lot of time reporting in Mexico and central America and abroad, you know, I — the reasonability of requesting that somebody apply for asylum in advance in a country like Guatemala, El Salvador, Honduras, even in Mexico with — most of which is really, really struggling, both economically and from a public safety standpoint. It’s very difficult to say that those are reasonable places to ask people to seek safety before they come to the American border.

GOLODRYGA: Caitlin, what happens to the migrants that are already at the border now?

DICKERSON: So, those that are in the United States will be processed and eventually released. You know, just to give you an example, here in New York, my sources in shelters that have been set up for incoming migrants say that most people have a job within days of their arrival and they’re going to work six or seven days a week.

They’re gardening, they’re cleaning houses, they’re cleaning offices, they’re preparing food. People tend to integrate into American society very quickly because of the labor shortages that I described. And for people who are trying to cross the border now, it’s going to be, you know, a changing situation for a while as these new Biden administration policies are debated in court.

But, what’s effectively the case is that you’ve got to use the CBP app to apply in advance. If you’re looking for asylum protections, if you’re trying to enter without prior authorizations, some sort of visa, you have to be approved. The app is very glitchy. It’s hard to meet these requirements we’ve discussed —

GOLODRYGA: And it only works in Mexico.

DICKERSON: And —

GOLODRYGA: Right?

DICKERSON: Yes. So, there are lots of restrictions that are going to make it really difficult for people to get access. But again, we aren’t seeing, you know, huge, huge numbers of people that we were warned about in advance, and you know, that’s very typical. We’ve been getting inflated estimates from the border patrol for at least three administrations now. So, you know, I think that it’s not going to be as dire as was anticipated, but the broader situation and the brokenness of the system is dire and has been for a very long time.

GOLODRYGA: So, we have this Biden policy and also, we have a Republican response as well. The Republicans in Congress just passed an immigration bill, they call it Secure the Border Act. And basically, it calls for more increase and beef up security services at the border and finishing Donald Trump’s wall. We’re talking about 2,000-mile border, Caitlin.

And I’m just curious, from your perspective in years covering this issue, in your view, can anything fundamentally be done, substantively, to change this crisis and address it head on without congressional approval and legislation from a bipartisan basis coming together in an acting law?

DICKERSON: No, I don’t think that’s possible. And I think we have, you know — I’ll just point to the last three administrations as very hard evidence. You know, the Biden administration — excuse me, the Obama administration, you’ll recall had a goal of reforming our immigration system. And what did it end up with when president Obama left office? DACA, which is an incredibly flimsy executive action which has been debated in court ever since leaving at the time. Hundreds of thousands of people living in limbo. Now, when you take into — when you take them and their children and their families into consideration, because they’ve been waiting for so long for some sort of real, clear, and lasting answer from Congress, you got millions people — of people who are living in the United States every day, functioning members of our societies, and contributing members of our society, but who are still living with this lack of clarity about whether they’re going to be able to continue their lives here or not, you know, that’s just one small sliver of the system. Of course, we all recall the four years of the Trump administration and the dramatic changes and whiplash that occurred as a result of all the legal challenges that administration faced. There is no way that you could call that meaningful progress on immigration. And here we are again. You know, I don’t think that this situation can be solved without Congress. But I think Congress has done a really effective job at blaming the White House and taking attention away from itself.

GOLODRYGA: Yes, we should note that the newly passed Secure the Border Act, passed by Republican majority Congress. It doesn’t even address legal pathways for migration or the status of the dreamers that are already here in the United States. Caitlin Dickerson, this is an enormous crisis that you’ve been covering now for years. And it’s important that we keep talking about it and continuing to cover it. Congratulations again on your award and all of the work that you’re doing. We will continue to follow this for sure.

DICKERSON: Thanks for having me.

GOLODRYGA: Thank you, Caitlin Dickerson.