As more migrant children arrive, Biden faces political hurdles

Mayorkas says department faces ‘stressful challenge’ but not ‘crisis’ at border

A Customs and Border Protection agent in August 2019 processes migrants who crossed the border in the Rio Grande Valley area of Texas.  (Jinitzail Hernández/CQ Roll Call file photo)
A Customs and Border Protection agent in August 2019 processes migrants who crossed the border in the Rio Grande Valley area of Texas. (Jinitzail Hernández/CQ Roll Call file photo)
Posted March 1, 2021 at 7:27pm

President Joe Biden has promised a more compassionate approach to immigration than his predecessor. But high numbers of children and families fleeing deteriorating conditions in Central America and strict U.S. protocols to prevent the spread of COVID-19 have put that promise to an early test.

The Department of Health and Human Services, which takes custody of migrant children who arrive in the U.S. without a parent, had approximately 7,600 children in its care as of Friday, more than double the average number of kids in custody this time last year, a department spokesperson told CQ Roll Call.

At a news conference Monday, Homeland Security Secretary Alejandro Mayorkas pushed back on claims of a “crisis” at the border but acknowledged that the department faces a “stressful challenge.”

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“We are challenged at the border. The men and women at the Department of Homeland Security are meeting that challenge,” he said.

The increasing numbers present an operational hurdle for the administration less than six weeks after Biden took office: how to restore a system to consider children’s asylum claims, a process essentially shut down under the Trump administration, while maintaining COVID-19 protocols.

It has also presented a political challenge. Some immigrant advocates and Democrats decry the use of any form of detention for children, while Republicans accuse their Democratic colleagues of hypocrisy for attacking the previous administration’s immigration practices on the issue.

Theresa Cardinal Brown, immigration director at the Bipartisan Policy Center and a former DHS official, said the administration faces a “twofold” challenge.

“One is balancing the expectations of the Democratic base and immigration advocates for, basically, ripping apart and getting rid of all of Trump’s policies and practices at the border,” she said. The other is “managing the folks who are arriving in a way that is both humane but also doesn’t overwhelm the system.”

“It’s flying the plane while changing the engines out,” she added.

‘Wrong at every level’

When the pandemic initially locked down the country in March 2020, the Trump administration used a public health order to stop taking in migrant children and instead turned them away. The Biden administration has said it would exempt children from the expulsion policy and hear their asylum claims despite permission from a federal appeals court to leave the expulsion policy in place for minors.

But in doing so, they brought some of the current challenges “upon themselves,” said Jennifer Podkul, vice president for policy and advocacy at Kids in Need of Defense, which advocates for unaccompanied migrant children. This expulsion policy caused pressure to build up at the border, causing an uptick in arrivals of children who had been kept out for nearly a year, she said.

The Biden administration has found itself defending its decision to recently reopen an influx center in Carrizo Springs, Texas, to house up to 700 unaccompanied teenagers. It described the facility as a way to reduce capacity at licensed shelters and maintain social distancing while honoring its humanitarian obligation to allow children to seek asylum.

“This is our effort to ensure that kids are not in close proximity, and that we are abiding by the health and safety standards that the government has been set out,” White House Press Secretary Jen Psaki said at a Feb. 23 news conference.

But some advocates have urged the administration to steer clear of federal influx facilities, which are exempt from state licensing and certain oversight requirements. Many have previously come under fire for failing to conduct background checks on contractors and subjecting children to poor conditions.

House Appropriations Committee Chair Rosa DeLauro, D-Conn., recently sent a letter to the Biden administration urging limited use of influx facilities when possible.

“While I understand the COVID-19 pandemic has impacted licensed shelter capacity, we need to start thinking differently when it comes to the Unaccompanied Children program,” she wrote.

Other critics were more direct. 

“At the end of the day, children shouldn’t be held in detention, period,” AJ Hernandez Anderson, a senior supervising attorney with the Southern Poverty Law Center, said in an interview. “It’s wrong at every level, and it shouldn’t be happening.”

Some Republicans, in turn, have accused Democrats of being hypocrites for failing to stir up the same outrage for the HHS influx facility as they did for similar Trump administration actions at the border.

“Under Trump administration = Kids in cages. Under Biden administration = Kids in migrant facilities. This is the problem with life in America right now,” Nikki Haley, Trump’s former U.N. ambassador, said in a tweet Thursday.

‘Reengineering’ the process

But for children who cross the border alone, it’s more complicated than “kids in cages,” experts say.

“I think people are confused about what do we mean when we say ‘detention,’” said Podkul.

Children apprehended by Border Patrol agents, who are part of DHS, are legally required to be turned over to HHS’ refugee agency, which is responsible for trying to reunite them with sponsors and family members.

Advocates say holding kids in HHS shelters, particularly influx shelters, is not ideal. But when HHS runs out of capacity, children are held for longer in Border Patrol facilities, which Podkul said are worse.

Images of children in overcrowded border jails circulated during the Obama administration, when high numbers of migrant children first started arriving in an unprepared United States, and it happened again under the Trump administration during the family separation policy. The House Oversight and Reform Committee found in a July 2019 report that the Trump administration held nearly 250 separated children beyond the 72-hour legal limit in Border Patrol facilities.

In a statement to CQ Roll Call, House Homeland Security Chairman Bennie Thompson, D-Miss., stressed that “no child should be left to wait for days or longer in Border Patrol facilities, like under the previous Administration.”

Once children are in HHS custody, the department is required to place children outside of government custody as soon as possible.

But it’s a balancing act. The Trump administration drew flak for imposing more requirements on potential sponsors, and even targeting undocumented sponsors, which could discourage children’s relatives from coming forward. On the flip side, congressional investigators have found that deficiencies in the HHS vetting process leave children at risk of being handed over to traffickers.

In a statement to CQ Roll Call, Sen. Rob Portman of Ohio, the top Republican on the Homeland Security and Governmental Affairs Committee who was involved in those bipartisan reports, urged the Biden administration “to ensure that these children do not fall victim to human trafficking, abuse, or other harm and that the agencies of jurisdiction improve their operations and meet their responsibilities under the law.”

Some advocates want more creative solutions that move beyond trading political barbs. Increasing oversight requirements at facilities, and even placing HHS staff at the border to expedite reunification when children arrive with a relative who isn’t a parent, such as an older sibling or grandparent, could help minimize time children spend in custody, they said.

“I think there’s plenty of outrage to go around. We need to turn that outrage into constructive solutions,” said Brown of BPC.

Mayorkas said at Monday’s news conference that the department is “reengineering” the process for unaccompanied children and looking at ways to make the process more efficient, including by co-locating HHS staff at Border Patrol facilities to identify sponsors more quickly.

Tania Guerrero, an immigration lawyer with the Catholic Legal Immigration Network based in Juarez, Texas, called on officials to reimagine what border facilities look like from the ground up to create a space where unaccompanied migrant children can be processed without trauma.

“We as a society can be so innovative and creative and generous and considerate in so many other industries,” she said. “Why can’t we see this in a practical and humane way when we speak of ‘facilities?’”