One Solution to the Border Crisis

two at the border on May twenty three. Title forty two is the public health authority that used the threat of COVID nineteen to deny migrants a chance to seek asylum. Joining me is Leon Fresco, a partner at Holland and Night. He was the head of the Office of Immigration Litigation during the Obama administration. Republican governors are complaining about the recision of Title forty two. Even Democrats are complaining that the Biden administration isn't prepared where the influx of migrants

when Title forty two ends. So is there an answer, yes, Jude, and the answer is that what we need to do is not to think about this debate in the current palse binary choice and think about it as how do we have an orderly process the process asylum seekers on the southern border. Right now, the choices are both bad. You have on one side a group of people saying

you have to keep Title forty two in place. You have to ban every asylum seeker who wants to come into the United States, regardless of whether they're from Ukraine, or whether they're from Cuba, or whether they're from Nicaragua or Venezuela, poor countries where there are clearly political instability and where there actually are legitimate asylum seekers, or whether they're from countries where there might not be legitimate asylum claims.

So that's one group, and then you have another group saying lift Title forty two and let everybody who wants to apply for asylum in the United States enter the United States and for years before their case has heard. And so the truth is there are ways administratively and legislatively, but if legislation can't be done administratively to try to create a more orderly fashion with regard to how asylum

cases are brought into the United States. So let's start with the administrative which the Biden administration then could just enact. So the way you would do this is as follows. You could announce a number. So let's say just you pick the number twenty five hundred per day, and you can say, we are going to process on our ports of entry twenty hundred asylum cases per day. And so what that would actually be is if you multiply undred times three hundred and sixty five days a year, a

million people per year. You're saying would be able to come to our port of entry and declare themselves as someone who wants to seek asylum in the United States, and you would actually space them out between the many ports of entries along this southern order, so that no particular port of entry actually saw a surge. And then you would tell people here, you go to this port

of entry, go to that one. And in addition to that, with a combination of keeping Title forty two in between the ports of entry and using the Migration Protection Protocols also known as remained in Mexico for other cases that there simply is no capacity to process through the ports of entry, you could actually restrict the traffic in between the ports of entry because the problem that happens now is there aren't asylum cases being processed at the ports

of entry, which is where they should be processed. These are the bridges that connect Mexico to the United States, where there are already CBP personnel there. That's where the cases should be going, but in an orderly and spaced fashion.

And then tell people if you're going to not use this, if you're going to cross between the port of entry, that's where we're gonna keep Title forty two in place, because what you're gonna be doing if you search in between the ports of entry is you're gonna be creating situations where large numbers of people have to be held in holding cells for days and days at a time, adults, children, all together, and that actually does create a health risk for the people in those cells and for the people

guarding the people in those cells. And so that's how I would do it, June is. I would try to say, have a million people that you're gonna be able to see through the asylum process, and have that come in through an orderly fashion. And if there's more people than that, meaning day that want to come along the southern border, then you're telling them you will have to use the

process where you apply for asylum from within Mexico. But we will give you the expedited process, but if you try to go in between the ports of entry, you're gonna be excluded visa the title four the two number one and number two, you will actually be precluded from applying for asylum as the deterrent for not trying to do that. There are ways to do this, and they

just have to come up with a practical plan. And by the way, if you processed a million people through the ports of entry, that would be more than have ever been processed before, So it would be a great humanitarian process to process those million people. And if there's more than that who in a given year now wants to actually apply for asylum again, we would use the expedited remain in Mexico policy for those individuals while they waited for their asylum place. What's the average number of

migrants processed yearly? So on a normal year, And the problem is COVID has made this sort of a difficult thing to consider. What is a normal year, because the last three or four years haven't been normal. But in a normal year, we're talking about somewhere between five hundred thousand and one million total border crossers. Not all of

those people even want asylum. They're just people apprehended crossing the border into the United States, and some are allowed to come in and apply for asylum, and some don't even say that they have any asylum plates. And so what we would be talking about here is replacing that with ad per day actual asylum seeker pool, like actually goes into the ports of entry and actually gets processed.

So you may have a hundred people a day going in through the San Diego port of entry, or a hundred people a day going through the Brownsville port of entry,

all along the southern border, El Paso, et cetera. And you could actually coordinate that with nonprofits so that you could actually steer people to the ports of entry that have less traffic, and that would actually be a way to make this process orderly, so that you're not giving up on the commitments to help refugees who need help, but you're not in the sort of worst case scenario

that DHS is talking about. And I don't know how realistic their worst case scenario is, but the worst case scenario that they've told Congress is eighteen thousand people a day, and so that would be six million people in a year. And if there really is that that would be unsustainable at an order of magnitude that we've never seen on the border before. I literally don't know how we would even process that many people. Would there be an objection

to setting a number at all? Would people say, you know you're not supposed to set numbers at the border, or will there be still objections if you set a number? Well, I don't think you're setting a number as a cap in this situation. But what you're doing is you're trying to determine realistically, how many appointments per day can you have at the San Diego Port of Injury without bogging

that down for its normal operations. The same question for Brownsville, the same question for El Paso, the same question for no Gallus. And then you're adding those up, and I believe you could very easily process day total along the southern border, but maybe you could process or maybe you end up finding out you can only process sift hundred,

whatever that number is. I would just encourage them to process the maximum number that could be processed along the Southern border on a daily basis, and then if there are more than that, the point is you simply cannot take matters into your own hands and go in between the ports of entry. What we should do there is work with Mexico to establish safe locations that are protected and are safe for people to wait either for their appointment to come through the ports of entry or to

literally pursue their asylum claim from that location. And we could even provide counsel for those individuals to allow them to make their claim. And by doing it and providing counsel just at those locations, you might be actually giving an incentive to stay because they'll actually have representation, whereas that representation might not be guaranteed to them if they enter the United States. So there's lots of ways to

think creatively. But what has to be done is that this debate about keeping or ending Title forty two just as a blanket option without any delineation, that debate really needs to change because it's not productive for anyone involved. So that's the administrative solution. What's the legislative solution you have in mind? If you wanted to actually operationalize this with the consent of the Congress, then the Congress could

actually create this by statute. And what the Congress would actually do is you something that would make it much stronger, which would be to say, if you go in between the ports of entry, once we've decided to allow people per day in the southern border to go through the ports of entry, then you're actually statutorially banned from getting asylum.

The only thing you could get would be withholding of removal, which is a very temporary relief or what's called Convention against Torture relief if you could prove you're gonna be tortured in your home country. So the Congress could actually enact that and say, look, we are gonna buy law force people to go in between the ports of entry.

But what would also be necessary would be to guarantee slots through those sports of entries to make sure that no future president would actually get rid of those slots number one and then number two, and a trade could actually be made in my view at this point, given where the Supreme Court is headed on DOCA most likely, which is to invalidate data, is you could actually make a trade to help the Dreamers in exchange for this

border security measure. And I think that benefits both sides in that situation, because these two issues have been very difficult for both sides the Dreamer issue has been pretty positive for the Democrats and it's been a harder one for the Republicans to grapple with. And the border issue has been sort of a winner for the Republicans, have been harder for the Democrats to grapple with. You could put these two issues together and solve these two problems

at once in a durable way for both parties. Does word get out that you know, you have to get an appointment and you have to do this, or do people still end up showing up at the border. The people who are coming to the United States are quite sophisticated for the most part about their strategy and their

plan for entering the United States. For instance, once Ukrainians learned that they were getting paroled at the Southern border, you started to see many more Ukrainians actually appear at one specific location in the southern border where they had heard that other Ukrainians were being paroled into the United States.

And parole is actually being given legal status that allows you to enter legally and allows you to work legally while you're in the United States, which is something that a lot of other countries aren't getting, but Ukrainians are getting. And so my point being, even if both don't know, if they try to cross the border without permission, the Border Patrol can tell them, Look, here's what you have to do. You have to turn back and ask for

an appointment. And here's how you ask for an appointment, and here the NGOs that are working with this, or here's the website that you go to to ask for this appointment. And yes, they'll have to go and get assistance to get the appointment, but people are getting assistance to do a lot more within the context of this trip.

It would be actually a lot easier to show up at a specific appointment at a specific port of entry than it is to try to guess where across at what time of day so that you're least likely to be apprehended, or on the other hand, where it is to cross where you're most likely you know you're gonna be apprehended, but you're least likely to be detained long term by the CBP or by ICE at a specific location.

So there really is, for better or for worse, a lot of intelligence going on on both sides of this, on the US government side and on the side of people bringing people in through the Southern border. And so if you were to announce such a change, you would see pretty quickly an adaptation to the new state of affairs on the southern border. I want to talk about

the lawsuit. Now. Eighteen Republican attorneys general have joined the lawsuit that was filed by Arizona, Louisiana, Missouri earlier this month. Refresh our recollection what the basis of that lawsuit is? Sure. The basis of that lawsuit is twofold. One that the action is arbitrary and capricious, and two that they required some sort of notice and comment before eliminating Title forty two,

both claims being administrative procedure at claims. And so the question that the states are going to be making is why is the Biden administration doing only some things related to COVID and not others. So, for instance, why would you eliminate Title forty two but not eliminate the mask mandate in the airports, Or why would you eliminate Title forty two but not eliminate the testing requirements for U S citizens to re enter the United States on airplanes.

And so those are the claims that are going to be made, and it's going to be up to the individual judge to decide whether it does seem to that judge to be an arbitrary and capricious fact or not, or even if this is reviewable at all by the courts, because Congress really made an effort that these Title forty two decisions wouldn't be reviewable, and so it seems like the first difficulty would be would a judge be able

to find that this is reviewable at all? But if a judge could find that it's reviewable, then is an arbitrary and caprecion. But I do anticipate, just because of how many states are involved in and how many different places they can see, that you'll probably see at least one district court judge if this case doesn't work in some other court joining the Title forty two, and then that will have to work this way through the upper levels of the court. Thanks for your insights, Leon, as

always that Leon Fresco of Holland and Night. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com. Slash podcast slash law, and remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg