The Biden administration is ping-ponging among a series of Trump-era immigration proposals as officials fret over the end of Title 42.
That pandemic immigration policy, enacted under former President Trump, has been central to the Biden administration’s management of the border, but is due to end May 11, along with other pandemic emergency measures.
Apart from defending the use of Title 42 for nearly two years, the administration has carried out a program of extensive deportations to Haiti, proposed a rule that would severely limit who could request asylum in the United States, and — according to reports — is considering reinstating family detention at the border.
Both The New York Times and The Wall Street Journal reported Monday that Department of Homeland Security officials are considering reinstating family separation to deal with the end of Title 42.
The reports have neither been confirmed nor denied by administration officials.
“I’m not going to go weigh in on rumors that are out there or conversations that are happening at this time. The Department of Homeland Security is certainly continuing to prepare for the eventual lift of Title 42,” White House press secretary Karine Jean-Pierre told reporters Tuesday.
“No decisions have been made. But we’ve been very clear with how the president wants to move forward … by putting forward a comprehensive immigration reform.”
Deterrent measures roil immigration advocates
The specter of the family detention policy, a program that was greatly expanded in the Obama administration after the 2014 surge in asylum applicants, threatens to implode the already-strained relationship between the White House and immigration advocates.
At the core of tensions is the Biden administration’s reliance on measures meant to dissuade migrants from attempting to reach the United States, such as family detention, Title 42 expulsions and other measures heavily favored under Trump.
Those sorts of deterrent measures, say many Democrats and advocates, are not only cruel but they don’t work.
“I’m alarmed by news reports that the Administration is considering reinstating family detention policies. Not only are these policies cruel and harmful to children, but they don’t prevent families from traveling to the United States,” said Rep. Bennie Thompson (Miss.), the top Democrat on the Homeland Security Committee.
“If the reports are true, I strongly urge the Administration to reconsider this policy change and instead work towards implementing immigration policies that are humane, orderly, and in line with our American values.”
The Department of Homeland Security failed to respond to detailed questions from The Hill.
“The Biden administration has been rolling out Trump 2.0 policies for many months now,” National Immigrant Justice Center Executive Director Mary Meg McCarthy said in a statement, pointing to a new proposal to enact further limitations on asylum, as well as to rely heavily on Title 42.
“These cruel and inhumane policies are becoming this administration’s legacy. President Biden has a choice to make: he can either continue to outdo his predecessor or respect the human rights of immigrants and asylum-seekers.”
Senators push back on plan
Immigration reform advocates within the Congressional Hispanic Caucus were angered both by the substance of the proposal and by the lack of consultations with the group.
“The lack of communication in immigration related policy decisions is an insult. It would be like making civil rights legislative ideas and thoughts without checking with the Congressional Black Caucus. It’s not acceptable,” said Sen. Bob Menéndez (D-N.J.).
Menéndez also wondered why the administration would float a policy that Biden officials themselves nixed.
“I think renewing family detention may have been internally floated for discussion. But this administration ended that form of detention, I can’t understand for the life of me why they would bring it back,” he said.
And the idea of reinstating family detention raised alarm bells even among Democrats, who publicly worried that the administration’s first push to end Title 42 was premature.
“I will just say this: Family detention was wrong under Trump, and it is wrong now. If anybody tries to implement it, I’ll call it out,” said Sen. Catherine Cortez Masto (D-Nev.), who took flak from the left for criticizing the push to end Title 42.
“It doesn’t address the chaos at the border, and it doesn’t fix our broken asylum system. It’s the wrong way to do it. And we need to actually solve this problem.”
Candidate Biden spoke against family separation
The Biden administration drew down family detention through 2021, and in December of that year it announced Immigration and Customs Enforcement was holding no more detainee families.
The end of the detention policy followed a campaign promise from Biden to enact a “safe, orderly, and humane” immigration system.
“A policy that separates young children from their parents isn’t a ‘deterrent.’ It’s unconscionable. A policy that traumatizes children isn’t a bargaining chip. It’s abhorrent,” Biden said in 2018.
He offered a similar sentiment during the campaign.
“Children should be released from ICE detention with their parents immediately. This is pretty simple, and I can’t believe I have to say it,” he tweeted in 2020.
Advocates warned a reversal on that front could be punishing in future elections.
“Just like the asylum ban, this approach is bad policy and bad politics and cruel. It undermines the argument that Democrats are different when it comes to this issue; will never satisfy the GOP; dampens enthusiasm among key constituencies; and creates another host of problems as it relates to harms to kids and families,” Vanessa Cárdenas, executive director America’s Voice, said in a statement.
“We hope the Administration rethinks this approach and instead focused on standing up more legal pathways and invest in community based support services.”
While the Obama and Trump administrations’ use of family detention received pushback from immigration advocates from the get go, research and headlines piled up over time showing that minors who spend significant time in detention endure significant trauma.
Research on minors in U.S. detention centers largely mirrored similar studies on minors in Australian ones, which have comparable conditions.
That evidence and images of detained families helped solidify political opposition to the practice, which most of the administration’s allies had thought to be fully defunct.
Rep. Lou Correa (Calif.)., the top Democrat on the House Homeland Security Committee and an outspoken immigrant advocate, excoriated the administration for considering measures to “stonewall migrants from seeking safe-haven in this country.”
Correa also panned the administration’s Title 42 reasoning for considering more deterrent measures.
“We’ve pushed for the end of Title 42 for over two years, leaving the Administration with ample time to prepare for its ending,” said Correa. “This method of preparation, if chosen, is immoral and unacceptable.”
The potential reinstatement of family detention comes as administration officials say the number of those seeking to cross the border could reach 13,000 a day once Title 42 is lifted in May.
Still, like other measures weighed for alleviating pressure at the border, the resumption of family detention is likely to spur lawsuits.
“How we choose to respond to the children and families fleeing violence and persecution who come to our border seeking safety says a lot about who we are as a nation. Putting children and their parents behind barbed wire to deter them from seeking safety should shock the conscience of every American who believes in fairness, safety, and basic human dignity for all people,” Anthony Romero, executive director of the American Civil Liberties Union, said in a statement.
“If President Biden moves forward with these plans, he will be putting vulnerable, traumatized immigrant children at risk. We will fight him every step of the way.”