The Centers for Disease Control (CDC) is supposed to reveal as soon as tonight whether it will renew an order under Title 42 of the U.S. Code that requires the Department of Homeland Security (DHS) to block and expel any immigrant who enters or seeks to enter without prior permission, including asylum seekers. If the CDC maintains the order until at least the end of May—as several outlets have reported—it should immediately suspend its application to those seeking asylum at ports of entry.

By applying Title 42 at ports, the CDC created a perverse incentive for immigrants to cross the border illegally, see if they could evade detection, and—if they could not—hope that DHS lacked the capacity to expel them. There was no reason to wait to apply legally once the ports were closed. This fateful and incomprehensible decision created absolute chaos at the border, causing border stations that CDC’s order was meant to keep empty to overflow. 

As I have explained in greater detail elsewhere, CDC’s decision effectively invented illegal immigration from Mexico for two nationalities in particular: Haitians and Cubans. Both groups had previously always been permitted by Mexico and the United States to apply for asylum at ports of entry. After the decision to end asylum at ports, they began to enter en masse illegally, resulting in the largest number of Cuban and Haitian illegal land border crossings ever.

The Cuban and Haitian experience proves that illegal immigration is choice made by the U.S. government (in collaboration with Mexico) to stop people from entering legally. If Mexican authorities do not block them, other nationalities could also be processed at ports of entry. Ukrainians and some Russians at ports are already receiving special exceptions from the order and entering the United States legally. DHS could unilaterally expand these exemptions using the discretionary authority already provided to DHS in CDC’s current order, but it would be even better for CDC to specifically order DHS to do this. 

By blocking asylum at ports, the CDC’s order is directly encouraging illegal immigration. There is absolutely no reason to extend this absurd and illogical aspect of Title 42. DHS should immediately start processing all immigrants seeking asylum at ports of entry. Asylum seekers would constitute a negligible part of the daily inflow of legal crossers from Mexico at ports of entry, and their admission would displace illegal crossings. The phase-out period until May 23 would give all asylum seekers time to learn about the new system, and this would end most illegal immigration from countries other than Mexico.

The Biden administration has repeatedly said that it wants a “humane and orderly” immigration system. The time to start creating that system is now.