Biden continues to use Title 42, a Trump-era immigration policy. But he's made one key change.
Rebecca MorinWASHINGTON – President Joe Biden undid several of Donald Trump's hardline immigration policies since being inaugurated earlier this year. But the Biden administration continues to use one COVID-19-era policy that is causing the majority of migrants to be turned away at the border: Title 42.
Title 42, issued by the Centers of Disease Control and Prevention, allows Customs and Border Protection to expel undocumented migrants to prevent the spread of the virus in holding facilities. The policy began last March under the Trump administration at the start of the coronavirus pandemic.
The policy has been getting attention lately as the administration grapples with the increasing numbers of unaccompanied migrant children seeking asylum at the border, where thousands of children are being held in government facilities. It's caused an uproar on Capitol Hill with Democrats and Republicans criticizing the administration for its handling of what some call a "crisis" at the border.
A group of 19 Republican senators are expected to visit the border in the Rio Grande Valley on Friday.
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Although both the Biden and Trump administrations have used Title 42, there are key differences in how it’s being implemented, something the White House has pointed out.
Biden's Homeland Security Secretary Alejandro Mayorkas said Sunday the prior administration used the policy “far differently than we are using it now.”
“We have made a decision that we can address the public health imperative while addressing the humanitarian needs of vulnerable children,” Mayorkas said.
The key difference between the two administrations’ implementation of the policy: unaccompanied children.
Under the Trump administration, almost every migrant coming to the U.S.-Mexico border was turned away, including children. While adults would typically be expelled to Mexico, children were often put up in hotels and then sent back to their home countries.
The Biden administration, on the other hand, has begun admitting migrant children into the U.S., while expelling most families and single adults. White House press secretary Jen Psaki said a small, limited number of families have been accepted into the U.S.
Psaki and other administration officials have repeatedly said it would be inhumane and dangerous to turn away children.
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“Children presenting at our border who are fleeing violence, who are fleeing prosecution, who are fleeing terrible situations, is not a crisis,” Psaki said Monday. “We feel that it is our responsibility to humanely approach this circumstance and make sure they are treated and put into conditions that are safe.”
The policy has been criticized by immigration activists and was condemned by Vice President Kamala Harris under the Trump administration. Harris was one of 10 senators last year who signed a letter to then-acting Homeland Security Secretary Chad Wolf asking for information on the policy’s implementation.
“A public health crisis does not give the Executive Branch a free pass to violate constitutional rights, nor does it give the Executive Branch permission to operate outside of the law,” the letter said. “Responding to crises while upholding our legal obligations is the very hallmark to the rule of law.”
On Wednesday, Biden announced Harris will now lead the administration's efforts to stem migration.
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Title 42 has been challenged legally. Last year, immigrant rights activists challenged the policy, with some saying unaccompanied minors have special rights under anti-trafficking legislation, said Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School.
A district court sided with the activists and ordered the Trump administration to begin accepting unaccompanied minors. However, the ruling went to the Court of Appeals, where it stayed the lower court ruling while it considered the merits of the appeal, Hallett said.
“Up until the end of the Trump administration, minors were still getting expelled under Title 42 just like everybody else,” Hallett said. “Essentially what the Biden administration has done is, has decided to follow this court order even though it doesn't have to legally.”
Mayorkas said Sunday the Biden administration is using the policy as “intended.”
“We are using it as a Title 42 authority was intended, and not as a bludgeoning tool under immigration law that the prior president used,” Mayorkas said.
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Trump implemented several hardline immigration policies, including the Migrant Protection Protocols, also known as “Remain in Mexico,” which forced migrants to wait for U.S. immigration hearings in Mexico. It also had a “zero-tolerance” policy that led to the separation of parents and children at the border.
Under the Trump administration, the Department of Homeland Security was supposed to consult with the CDC on how to make case-by-case exceptions to the policy, said Kristie De Peña, vice president for policy and director of immigration at the Niskanen Center, a think tank that advocates for immigration reform, among other policies.
Despite that, De Peña noted the Trump administration was turning away the majority of migrants coming to the U.S.-Mexico border.
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But the Biden administration's change in policy has also left them grappling with how to address the influx of unaccompanied migrant children at the border.
The White House has said it will not turn away unaccompanied children. But a small number of families are also being accepted if they have young children under the age of six. Psaki said Monday that Mexico doesn't have the capabilities to hold some of those families, so they are "processed, tested, considered at the border" in the U.S.
"Most of them are sent back to their home countries," Psaki said.
The increased number of children being accepted into the U.S. has led to overcrowding in short-term, jail-like facilities run by Customs and Border Protection. The Biden administration has struggled to quickly move children out of those facilities and into facilities ran by Health and Human Services. Children are supposed to be moved out of CBP facilities within 72 hours by law.
The Biden administration is now trying to quickly open new facilities to help transfer children out of the CBP facilities, which Psaki has noted were "not made for children."
In October, November and December, U.S. Border Patrol apprehended fewer than 5,000 unaccompanied minors per month. But that number rose to 5,700 in January, and climbed again to nearly 9,300 in February.
As of Thursday, Health and Human Services had 11,900 unaccompanied minors in its care, while another 5,156 children were in CBP custody.
The Department of Health and Human Services released photos Tuesday that showcased some of the conditions in the short-term facilities. In a video of a CBP overflow facility in Donna, Texas, children can be seen getting medical check-ups, as well as lining up for food. The video also shows children sleeping on mats with foil blankets.
A separate video from an overflow facility in El Paso showed similar conditions, with children seen getting a health screening and some children sleeping on mats with foil blankets. The video also showed some children eating and watching a movie, as well as some children outside exercising.
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With migrant children arriving at the border and the coronavirus pandemic still underway, it’s unclear when the administration will end the use of the controversial policy.
“I expect that decision will be made with our health team in the lead, and in coordination with the Department of Health and Human Services and the Department of Homeland Security,” Psaki told reporters Tuesday when asked when they will reevaluate Title 42.
“Obviously, we’re still in the middle of a pandemic, 1,400 people are still dying in our country every day,” she added. “I don’t think we’re at that point in the process.”
De Peña said the Biden Administration will likely keep the Title 42 policy in place as the administration tries to figure out a better way to process larger groups of asylum seekers and families.
"In the interim, we need to handle the processing of unaccompanied minors and get the funding to do so," she said. "That's a critical part of it."
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Contributing: Lauren Villagran, El Paso Times
Reach Rebecca Morin at Twitter @RebeccaMorin_
