Preet Bharara:

From Cafe and the Vox Media Podcast Network. This is Stay Tuned in brief, I’m Preet Bharara. Today we’re going to talk about immigration. After the aggressive anti-immigrant policies of the Trump administration, President Biden entered office with the intention of restoring America as a welcoming destination for immigrants. Now he faces a divisive policy dilemma. That’s because Title 42, the Pandemic era emergency measure that allowed the administration to swiftly expel migrants at the border has now expired. My guest this week, Julia Preston, is a contributing writer at the Marshall Project. She previously covered immigration for the New York Times where she was part of a team that won the 1998 Pulitzer Prize for reporting on drug related corruption in Mexico. Julia Preston, welcome to the show.

Julia Preston:

Thank you so much for inviting me.

Preet Bharara:

So we have a lot to pack in here because a lot’s happening. We’re recording this on Thursday, May 11th, the date on which Title 42 is set to expire. First do you expect that it will definitely expire?

Julia Preston:

Definitely.

Preet Bharara:

And… Okay, well, what is, or I guess what was Title 42?

Julia Preston:

Title 42 was an order that was evoked in March of 2020, in the early days of the pandemic under a public health emergency that was put in place at that time. And Title 42 empowers border officials to immediately expel migrants who cross the border without documentation. And it’s important to understand that these expulsions took place without allowing the migrants to ask for asylum, but also without any penalty and without creating any immigration record or consequence. So this was… You come across the border in the morning, in the afternoon, you are expelled to Mexico.

Preet Bharara:

And was this a policy that was really necessitated by the pandemic, or was the pandemic a pretext to do something that the Trump administration otherwise wanted to do?

Julia Preston:

The Trump administration had long made it clear that it wanted to shut down the asylum system completely. And this was a very useful tool to do that. At the time when the order was first put into place, the pandemic, the virus infection was actually coming from the United States into Mexico. So there was… Even the public health authorities at the time acknowledged that there was no public health justification for the order. Of course, over time, as we know, the pandemic evolved in a horrifying fashion, and there were times when the Biden administration had to consider more closely whether it was in fact a good idea to continue having some kind of public health control at the border. By this time, it’s pretty clear that there is no public health justification for Title 42,

Preet Bharara:

But when Biden came in… Could he have caused Title 42 to end when he came in? And if so, why didn’t he do that?

Julia Preston:

He did try. Biden had denounced this policy as being inhumane. And-

Preet Bharara:

During the campaign.

Julia Preston:

During the campaign. And when he came to office, he did say that he was going to cancel Title 42. And the administration kind of held off on that because they saw that there were very large numbers of people were starting to come to the border. But eventually they did try and stop and cancel Title 42. And then they got in the middle of dueling federal court decisions, a court decision from a federal court in Louisiana that said that it was illegal to cancel Title 42 and later a federal court decision from a court in Washington DC that said that the whole program should, and the whole order should never have been put in place in the first place. And so the way that the administration resolved that is just by continuing these expulsions without stopping until last week.

Preet Bharara:

Could we take a step back for a second? Could you explain and describe the scope of the issue at the southern border? How many people have been coming in? What has that flow been? How has it changed over time, and where are they coming from?

Julia Preston:

Yes. So this is very important because the creation of Title 42 coincided with really an unprecedented surge in migration in the Western Hemisphere. We are experiencing the largest migration since World War II in the Western Hemisphere, and the people who are coming to the border, particularly in the last year and a half, it’s a very different population from the groups that were coming for most of the last decade. So the movements of asylum seekers started really more than a decade ago with families who were coming from Central America. And they were coming to the border and instead of trying to evade the border patrol, they were coming across primarily in South Texas, across the Rio Grande River and looking for border patrol agents and asking for protection. So there it began a whole dynamic of asylum seekers, people looking for asylum coming to the United States border.

All of that pretty much stopped with the pandemic. So President Trump had a lot of fanfare about his border enforcement, but in fact, it really wasn’t that effective. And the numbers kept rising until the onset of the pandemic, which stopped everyone from traveling worldwide. After the pandemic, the economic effects of the pandemic coincided with these disastrous conditions in several countries in Latin America that are very problematic for the United States. Cuba. So we have seen the largest exodus from Cuba since the 1980s. Venezuela. You have 7.7 million Venezuelans who are outside of their country, who have been exiled from their country by this just catastrophic administration of President Maduro. Haiti. You have Haiti, basically a failed state. Dire conditions that we thought couldn’t get worse, and Haiti have continually gotten worse. And on Nicaragua where you have a dictator in the making, president Ortega, who has not only not created a strong economy, but has also clamped down in all sorts of ways on his opposition and caused Nicaraguans to flee really for the first time.

So suddenly you have all these people coming to the border. And that was particularly problematic for the Biden administration last year because they did not have agreements in place to be able to deport those people from those countries back to their countries. And so the mechanism of the expulsion of Title 42 became very important to try and just have some sort of minimal management at the border for people coming from those countries. So at this point, last year was a record year for the border patrol. We had more than 2 million encounters at the border by the border patrol with migrants coming across the border.

Preet Bharara:

So you mentioned, I think, Cuba, Haiti, Nicaragua, and Venezuela, people from those countries passing through Mexico into the United States. What about people from Mexico itself?

Julia Preston:

So I think this is a very important detail about Title 42 that has been largely misunderstood, which is that migrants are very savvy and the border now… There’s an additional factor at the border, which is that human smuggling has become an enormously profitable industry. And the Mexican narcotics cartels have by and large moved in to the human smuggling business at the border. And the combination of those two things, the fact that migrants are very, very sensitive and savvy about what the rules are on a given day, and the fact that the smugglers were controlling the messaging, the migrants very quickly figured out that under Title 42, if you were expelled, you could go back to Mexico, wait for a day and try again. And the first group of people who understood that were the Mexicans. So the Mexicans have been managing this border under all sorts of circumstances for a hundred years.

And Mexican migration had [inaudible 00:09:40], but when the Mexicans realized that they could just try again the next day, the first population that surged in terms of migration under Title 42 was from Mexico. But then subsequently, you had all these other flows coming in and it just created this situation at the border where the tools available to the Biden administration were just overwhelmed.

Preet Bharara:

So Title 42 expires. What will be the consequence of the border? And is the administration prepared to handle that?

Julia Preston:

So the administration is saying that they’re prepared, the consequence-

Preet Bharara:

Well, that’s what administration say. As they-

Julia Preston:

But they have… I will say that they have done a lot. The main thing that the Biden administration has done is put in place a new asylum rule. Under this rule, in order to be eligible for asylum in the United States, you have to do one of two things. You either have to use a new mobile app. So now we have DHS that’s gotten into the sort of modern technology of the mobile app. You have to use this mobile app to make an appointment to go to an official port of entry. We’re talking Laredo, San Diego, Brownsville, El Paso. You have to make an appointment to go to an official port of entry to ask to be admitted and to begin your asylum process. That’s one choice. The other choice is that you have to show that you applied for and were denied asylum in a country that you came through on the way to the border. And that rule, that transit ban, which is by the way, very similar to a transit ban that President Trump tried to put in place.

Preet Bharara:

Right.

Julia Preston:

That is the measure that is really going to impact the people who are coming to the border seeking asylum.

Preet Bharara:

What about the deployment of active duty troops at the border, which Biden has also announced?

Julia Preston:

I think those are… That’s just kind of for show. I mean-

Preet Bharara:

For show? I see.

Julia Preston:

I mean, this is a tough enforcement regime, what they’re talking about. They are reverting to the status quo before Title 42 under the regular laws governing the border. If you come across the border without papers, you are subject to expedited deportation. You are taken back to your home country. It’s not just an expulsion into Mexico. If you come back after you’ve been deported, then you are subject to criminal prosecution for reentry. And the administration is claiming, at least, that they are going to start those criminal prosecutions again. It’s very tough talk, and this asylum rule, I think, is going to have a significant impact. It remains to be seen is if they actually have the capacity to put this all into place, if they actually have enough airplanes to deport people, if they have the agreements in place. So if there’s enough border patrol agents, this is… What we’re going to find out is whether they are successfully convincing migrants not to come or whether the capacities will be overwhelmed once again.

Preet Bharara:

I’m going to ask you a political question-

Julia Preston:

Sure.

Preet Bharara:

… which you may or may not answer. Are Democrats susceptible to the criticism that they minimize the problem of the southern border?

Julia Preston:

I don’t think the Democrats are minimizing this anymore. And there’s a reason for that, which is that today, there are 57,000 people calling themselves asylum seekers registered with the city of New York. There are 35,000 people in shelters in New York City today. The city of New York has taken over 103 hotels as emergency shelters for asylum seekers. There are 14,000 migrant kids have been registered this year in New York City public schools. I just saw a letter today from Senator Hickenlooper and Senator Bennett about the situation in Denver. There are 9,000 asylum seekers arriving in the city of Denver, Philadelphia, Boston.

Preet Bharara:

Yeah. So let me ask a basic and dumb question.

Julia Preston:

Yeah.

Preet Bharara:

How is it possible, legal, proper, the question people have been asking, that you have this influx at the southern border, Texas and other states, how are these people ending up in New York City, in Denver and other cities very far away from any southern border?

Julia Preston:

Well, some of them have ended up there because the governor of Texas, Greg Abbott, who as we all know is a Republican, started busing migrants from the Texas border, really, most of them to New York. But he was sending buses all over the country. And this was kind of a political gambit. He was taunting the Democrats to say, “We’ve been dealing with this. Now you deal with it.” And in a certain way, it was effective because very large numbers of these migrants, especially from the four countries that I talked about, were paroled into the country last year. The border was so overwhelmed, the detention capacity, there was a real danger of overcrowding in a lot of these frontline border patrol stations in Eagle Pass, Texas. Del Rio, Texas. Yuma, Arizona. These are not places that have large detention facilities.

And I was down there myself a couple of times last year, and just in Del Rio, Texas, there were a thousand people coming in every day. And so the authorities were just giving them notices to appear in immigration court, asking them where they wanted to go, and they were coming into the country with this temporary permission called a parole.

Preet Bharara:

Yeah.

Julia Preston:

So that’s how so many of these people have arrived in the United States.

Preet Bharara:

So everyone’s taking it more seriously. Now, final question, because we have to let you go. Many years ago when I worked in the Senate back in 2006, there was a lot of hope about comprehensive immigration reform, which would satisfy what people wanted for border security and also a path to citizenship and various other things. Is there a possibility of comprehensive immigration reform anytime in our future?

Julia Preston:

No, I would say not. It’s too… I think if we’ve learned anything over the last 10 years, I think there was a comprehensive reform bill that passed the Senate in 2013. It’s that the issue is too big, too contentious to take it at that huge level to try and solve the whole problem. What might be possible conceivably is some kind of smaller arrangement where you have, for example… You give citizenship to the young people known as dreamers, although they’re not young anymore because they’ve been waiting so long. But you do something for the dreamers and for farm workers, for example. You take a pieces of it. But what I will tell you is that because so many city officials now and state officials have become engaged in the immigration process because of all the new arrivals in the last year.

You’re suddenly hearing from the governor of Utah, for example, who wants to find a way to get some of these people through a parole program or some kind of state level sponsorship to come and work in the industry’s where they have need, the dairy industry, farming. And so there is a new kind of ferment at that more local level and at the state level to take practical steps. And maybe that’s the way of the future.

Preet Bharara:

Maybe it is. I hope we could do something on this issue. Julia Preston, thanks for being on the show. Thanks for all your insight.

Julia Preston:

Thank you.

Preet Bharara:

For more analysis of legal and political issues, making the headlines become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I co-host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @preetbharara with the #askpreet. Or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@cafe.com. Stay tuned, as presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Adam Waller. The editorial producers are Sam Ozer-Staton and Noa Azulai. The audio producer is Nat Weiner, and the cafe team is Matthew Billy, David Kurlander, Jake Kaplan, Namita Shah and Claudia Hernandez. Our music is by Andrew Dost. I’m your host Preet Bharara. Stay tuned.