“It’s bad and it’s getting worse,” a Homeland Security official said this week about the growing number of arrests at the US-Mexico border, particularly in south Texas.
Homeland Security Secretary Alejandro Mayorkas has tried to explain the Biden administration’s rationale for still relying on the authority, known as “Title 42,” despite deep skepticism behind it. In a call with immigrant advocates last week, Mayorkas argued the administration is using the public health order as a tool while it gets other policies in place and not because officials believe that the border should be sealed off to asylum seekers, according to a source with knowledge of the call.
In a statement to CNN, Matt Leas, a spokesperson for the Department of Homeland Security, put it bluntly: “[T]he border is not open, and people should not make the journey to reach it.”
Still, immigrant advocates are imploring the Biden administration to stop the practice of turning away migrants arriving at the US-Mexico border and to address those coming equally.
“The use of Title 42 as a justification for their ability to do good in the future is also them making the choice that these children and families are expendable in the meantime. In my opinion, that’s wrong,” said Alida Garcia, vice president of advocacy at FWD.us. “They need to find a way to walk and chew gum at the same time.”
White House press secretary Jen Psaki reiterated Tuesday that the administration needs more time to make the changes it wants. “There hasn’t been enough time to do enough to impact the circumstances on the ground,” she said.
But coming into the new administration, officials recognized the need for the public health order. “The calculus coming in was that they finally accepted they couldn’t make big changes. They had to leave Title 42 intact,” said one source involved in discussions during the transition.
Federal court action
The future use of the public health order for children and families is up to federal courts.
The Biden administration’s clearest defense of the order came in the form of a court filing earlier this month in a lawsuit challenging subjecting families to the public health order. A lower court had blocked the use of the order nationwide for kids, but that ruling was stayed by a federal appeals court while the case proceeds.
“Given such public health risks, the CDC Director determined that it is imperative to prohibit entry and expel covered aliens as quickly as possible,” the court filing reads, arguing border facilities are not equipped to quarantine, isolate or enable social distancing among detainees.
“Plaintiffs call this a ‘backdoor immigration policy’ while ignoring the fact that countries across the world have implemented emergency measures to help curb the spread of COVID-19, including closing their borders and imposing severe travel restrictions,” it continues.
Psaki said the administration would not expel unaccompanied children.
What happens next
Behind the scenes, Homeland Security officials are preparing for the possibility that they will have to return to admitting migrants, as the US has done in the past, though this time, taking into account Covid-19 precautions.
Customs and Border Protection is “constantly running through those scenarios” for the possibility that the policy could be reversed, an agency official told CNN. “Everything has been litigated, every court decision appealed, we operate as if the world is in a constant state of flux.”
The facility has been primarily used to temporarily house families and children that crossed the border alone, another agency official told CNN, who added that the facilities in the region are at capacity, given the Covid-19 restrictions on space. CBP facilities are generally not intended to hold people, especially children, for long periods of time.
Increase in number of unaccompanied children crossing border
A concerning trend for officials is the growing number of unaccompanied children arrested at the US-Mexico border. On Sunday, for example, border officials encountered 400 unaccompanied migrant children at the border, an official said.
Unaccompanied children who unlawfully cross the border are taken into custody by Border Patrol and referred to the US Department of Health and Human Services.
There are approximately 6,800 children in the agency’s care as of February 18, 2021.
ORR has been asking its shelter network to take children directly from Border Patrol custody because of the demand, instead of after a quarantine period at a shelter near the border, which had been the protocol during the pandemic, a source familiar with the process told CNN.
“Suddenly you have to start placing kids,” the source said. “Shelters are already required to have quarantine spaces but not for the number of kids it’s being needed for.”
The limited shelter capacity, as a result of Covid-19 precautions, is exacerbating the issues posed by an increase of migrant children at the US border. “They’re contacting their providers non stop asking how quickly they can bring on more capacity,” the source said.