Title 42 | GeorgMedia

November 7, 2021

Biden has quietly helmed the most radically anti-asylum policy in more than 70 years

Biden, wearing sunglasses, removes his mask — President Joe Biden is actively defending a radically anti-asylum policy.
Anna Moneymaker/Getty Images

Biden has maintained and defended a Trump-era policy banning asylum-seekers from entering the US.
The ban is said to be a public health measure, but scientists argue it is unnecessary and inhumane.
Biden is acting out of political interest, sending people to their deaths for his own political gain.
Jack Herrera is an independent reporter writing about immigration, race, and human rights. He is a contributing opinion writer for Insider.
This is an opinion column. The thoughts expressed are those of the author.

When President Joe Biden first took office, immigrant advocates across the country told me they felt cautiously optimistic; it was hard to imagine him being worse than his predecessor.

But warning signs appeared early on. While Biden spent his first days in office undoing some parts of former President Donald Trump’s immigration policies, the new president decided to keep one of the most radical immigration bans from Trump’s tenure. That ban is Title 42, an order the Trump administration enacted in the early days of the pandemic. An obscure piece of federal by-law, Title 42 gives the federal government the remarkable power to completely shut US borders in times of crisis. Trump used this new power to make his advisor, Stephen Miller’s, greatest fantasy a reality: He announced a ban on asylum.

For eight months, many people fleeing the danger of death and persecution abroad were “expelled” back to their home countries on deportation flights that came without the due process of asylum court.

Almost a year later, when Biden swept into office, he was expected to quickly undo this ban. Instead, to the horror of immigrant advocates, he’s done the opposite. He’s adopted Title 42 as his own, going as far as to defend it vehemently in court. Armed with a policy that can operate, at its most extreme, as a complete ban on asylum, Biden is today at the helm of the most anti-asylum administration in US history – tied for first place only with his predecessor.

Why no one is talking about Title 42

Few people seem to understand or appreciate Biden’s extreme position on asylum. Few Americans have even heard of Title 42.

In a way, that makes sense. In my years as an immigration reporter, I’ve discovered that the United States-Mexico border only really appears in most Americans’ minds as a set of shocking images. People pay attention when children are ripped out of their parents’ arms, or when Border Patrol fires tear gas at families or charges them on horseback. But the slow, grueling suffering created by policies like Title 42 goes on basically unnoticed. After more than 18 months of Title 42 – which is the most radical anti-asylum policy the US has enacted since World War II – I find that many people don’t know what it is.

A US Border Patrol agent on horseback grabbing a Haitian migrant. — A United States Border Patrol agent on horseback tries to stop a Haitian migrant from entering an encampment on the banks of the Rio Grande in Del Rio, Texas on September 19, 2021.
Paul Ratje/Getty Images

There are other reasons Title 42 hasn’t gotten more news. Last year, most of us were overwhelmed by the unending litany of tragedies, big and small, that COVID-19 brought into each of our lives; and news headlines were overwhelmed by the ugliest presidential election in recent memory. This year, both Biden and his Republican critics have tried to minimize references to Title 42, because they don’t fit within the lies both sides are telling about immigration. Republicans are trying to frame Biden as an “open borders” radical. Biden is trying to frame himself as an open-hearted pragmatarian, trying to achieve a “fair, orderly, and humane immigration system.”

Both messages are politically expedient; neither are true.

Here’s what’s actually happening

Since he took office, Biden has summarily expelled tens of thousands of asylum seekers. Even if asylum seekers face torture or death in their home countries, they have been returned, without the chance to plea asylum.

Besides expulsions, Title 42 has led to other kinds of suffering. In March in Tijuana, Mexico, I spoke with parents who had made or were considering the gut-wrenching choice to send their children to cross the border alone, without them. Because a court order blocked Trump and later Biden from summarily expelling asylum seekers who arrived alone as unaccompanied minors, Biden spent the spring accepting children but immediately expelling many families. While children weren’t being torn out of parents’ arms, Title 42 was causing the most desperate and vulnerable families to subject themselves to family separation.

Title 42 is also putting extraordinary strain on American border agents, and is putting asylum seekers in danger. In September, thousands of largely Haitian asylum seekers arrived in Del Rio, Texas at the same time. When I went to Del Rio to investigate, I spoke to many Haitians who had been waiting months in Mexico, waiting for their opportunity to cross. But with Title 42 keeping the border firmly closed, all they could do was wait. Increasingly desperate, many of them sprung suddenly at a rumor that people were being allowed to cross in Del Rio. Even though the rumor was false, the glimmer of hope was enough to send thousands to the Texas border. Most of them were expelled to their home countries within days.

In Del Rio, I saw that Biden has started allowing some families into the country, as well some of the most vulnerable asylum seekers arriving on the border – for instance, people who were pregnant or had disabilities. But even with these exemptions, Title 42 expulsion flights continue.

A man wearing a face mask looks out the window of a white van. — A Haitian migrant seeking asylum looks out of the window of a van in Del Rio, Texas, Sept. 24, 2021.
Nick Wagner/Xinhua/Getty Images

Biden’s justification is hollow

The Biden administration has argued that, during a global pandemic, Title 42 is necessary to prevent the spread of COVID-19. But that claim is preposterous, and I suspect the administration knows as much.

From its earliest days, it has been clear that Title 42 has nothing to do with public health. When the Trump White House first pushed the Centers for Disease Control and Prevention to enact Title 42, scientists at the CDC refused, arguing that it was neither necessary nor humane. It wasn’t until then-Vice President Mike Pence pressured the director of the CDC that the agency begrudgingly issued the order. Since then, dozens of scientists and public health experts have public ally decried Title 42’s application, saying it’s neither necessary to prevent the spread of COVID nor in the interest of human well-being.

“Imposing restrictions on asylum seekers and other migrants based on immigration status is discriminatory and has no scientific basis as a public health measure,” a collection of prominent public health experts wrote in an open letter published on January 28.

The hypocrisy and discrimination inherent in the order is clear: Right now, any American can cross the border freely. In the last year, I’ve crossed back and forth from Mexico multiple times. I received no temperature check, no one asked for my vaccination status, and no one asked me if I had COVID-19 symptoms. Americans – including at least one US Senator – are vacationing in Cancun and other resort towns across Mexico, and crossing back over the border freely. If Title 42 was really necessary for health, the border would be closed to Americans, not just asylum seekers – the most vulnerable people in the world.

Haitian migrants use a dam to cross to and from the United States from Mexico, Friday, Sept. 17, 2021, in Del Rio, Texas.
Eric Gay/AP Photo

Rather, it seems the administration’s commitment to Title 42 comes less from prioritizing public health, and more from maintaining approval ratings. Biden officials, terrified that the “open borders” rhetoric from conservatives will sink Democrats in the midterms, have gone out of their way to appear tough on immigration.

Biden has the power to overturn Title 42 at any moment he chooses. The asylum system, while deeply backlogged and under-resourced, still exists, and the US still has the potential to be a refuge from persecution for countless people. Biden’s decision not to undo the order does not come from an ignorance of the good it could do for human well-being; instead, his commitment to Title 42 comes from cynical political calculation.

I’m sympathetic to the tough position the president is in. Could undoing Title 42 hurt Biden among anti-immigrant voters and see him pilloried in conservative media? Certainly. Would it be tedious and difficult to process thousands of asylum claims, while also maintaining social distance and other necessary health protections? It would be.

However, the reason we as a species have developed the concept of human rights is because these rights are not always politically expedient: If respecting a human right like asylum was always simple and easy for our governments, we would not have needed to sign multiple massive, international treaties and pass several laws through Congress. Asylum isn’t easy or convenient. But it’s an aspect of basic morality. If someone is fleeing death, and we turn them around, we’re responsible for whatever happens to them next.

In many ways, modern asylum in this country was born in response to the most infamous example of this happening in US history: When our country returned Jewish asylum seekers to the horrors of the Holocaust.

Today, amidst countless expulsion flights, we are repeating that history. We are sending people back to their deaths.

Read the original article on Business Insider

October 4, 2021

State Department legal expert Harold Koh says ‘Title 42’ deportations violate international law

Haitians who were deported from the United States deplane at the Toussaint Louverture International Airport, in Port au Prince, Haiti, Sunday, Sep. 19, 2021. — Haitians who were deported from the United States deplane at the Toussaint L’Ouverture International Airport, in Port au Prince, Haiti, Sunday, Sep. 19, 2021.
Joseph Odelyn/AP Photo

“Title 42” was first implemented in March 2020.
It allows the US to expel migrants without considering their claims to asylum.
Under international law, countries cannot issue a blanket ban on asylum.
See more stories on Insider’s business page.

A prominent legal adviser to the Biden administration has issued a six-page memo accusing the United States government of breaking international law by expelling migrants without even considering their claims to asylum.

First invoked by the Trump administration, Title 42 was ostensibly intended to protect public health. An order issued by the US Centers for Disease Control and Prevention in March 2020 cited COVID-19 as a reason to effectively close the border to migrants seeking refuge. It was harshly criticized at the time by public health experts outside the administration, who viewed it as a means of carrying out a long-standing policy goal of limiting immigration, using the pandemic as justification.

While the Biden administration’s critics falsely claim there are now “open borders,” President Joe Biden has continued enforcing the order – appealing a recent court decision that found it illegal – with exceptions made for unaccompanied children and many families. Last month, nearly 4,600 Haitians, the majority women and children, were expelled in a matter of days under the policy.

“Is this who we are?” That’s the question State Department legal adviser Harold Koh asks in the memo obtained and published by Politico on Monday. A law professor at Yale University, Koh notes that the US is obliged, under international law, not to expel vulnerable people back to countries where they legitimately fear persecution.

From October 2020 through August 2021, US Border Patrol expelled people under Title 42 more than 938,000 times.

It is “particularly unjustifiable” in the case of Haiti, Koh writes, with the administration not even considering the asylum claims of Haitians it expels under Title 42 – despite itself acknowledging, in its granting of Temporary Protected Status for those already residing in the US, that Haiti has been rocked by political instability and natural disasters that make it unsafe place to which to return.

“Title 42 permits customs officers, with supervisor approval, to identify persons who should
be excepted from expulsion based on the totality of the circumstances, including consideration of
significant law enforcement, office and public safety, humanitarian and public health interests,” Koh noted. “But if Haiti is undeniably a humanitarian disaster area, the question should be: at this moment, why is this Administration returning Haitians at all?”

Politico reported that Koh is leaving his position as an adviser to the State Department and that his memo had “been circulating across the administration” over the weekend. He could not immediately be reached for comment.

Koh previously advised the State Department during President Barack Obama’s administration, attracting controversy at the time over his argument that the US had a legal right to carry out extrajudicial executions, via drone strikes, in countries such as Afghanistan, Pakistan, and Yemen.

Have a news tip? Email this reporter: cdavis@insider.com

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September 23, 2021

The Biden administration is looking for contractors and guards for a migrant detention facility in Guantanamo Bay – stirring outrage in lawmakers and advocates

The Biden administration is seeking to run a migrant detention facility in Guantanamo Bay, per NBC News.
A government contract solicitation says that guards must speak Spanish and Haitian Creole.
The listing comes as the Biden administration has struggled to accommodate Haitian migrants.
See more stories on Insider’s business page.

As the Biden administration struggles to process an influx of Haitian refugees at the US Southern border, it is seeking a private contractor to open a migrant detention facility in Guantanamo Bay, according to NBC News.

In a public government contract solicitation, the Department of Homeland Security says that it seeks to establish the facility at the US Naval Base in Guantanamo Bay, Cuba, with a capacity of holding 120 people.

The solicitation also includes a requirement that guards running the facility speak Spanish and Haitian Creole.

“The service provider shall be responsible to maintain on site the necessary equipment to erect temporary housing facilities for populations that exceed 120 and up to 400 migrants in a surge event,” the solicitation says.

Insider reached out to the White House for comment.

“DHS is not and will not send Haitian nationals being encountered at the southwest border to the Migrant Operations Center (MOC) in Guantanamo Bay,” a DHS spokesperson told Insider.

“The MOC has been used for decades to process migrants interdicted at sea for third-country resettlement. The request for information (RFI) recently posted is a typical, routine first step in a contract renewal, and unrelated to the Southwest Border. The contract was initially awarded in 2002 with the current term ending on May 31, 2022,” the spokesperson added.

The NBC News report has stirred up frustration within immigrant rights organizations that have also been demanding that the administration end Title 42, a Centers for Disease Control and Prevention public health order started during the Trump administration that has effectively closed border crossings and enabled the rejection of asylum seekers.

The Biden administration, however, has chosen to defend Title 42 in court. It said this week that it plans to appeal a judge’s decision to challenge Title 42.

“The treatment of Haitians and Black migrants by the Biden administration is inhumane and unacceptable,” the Immigrant Justice Network told Insider in a statement. “For months, advocates have called on the Biden administration to end Title 42, a Trump-era policy that has been used to deport thousands of asylum seekers.”

“We call on President Biden to immediately stop deportations and grant Haitian migrants humanitarian parole,” the statement added, “Sending Haitian migrants to Guantanamo Bay, a place known for human rights abuses, was a mistake in the 1990s and would be a mistake now.”

Although most famously known as a controversial holding site for terror suspects, in the early 1990s, the US sent up to 12,000 Haitian migrants attempting to seek refuge in Florida to migrant detention facilities in Guantanamo Bay, under the George H.W. Bush administration. According to NBC News, the policy was ideated by then-Attorney General William Barr.

Rep. Alexandria Ocasio-Cortez called the proposed Guantanamo Bay move “utterly shameful,” in a tweet on Wednesday.

-Alexandria Ocasio-Cortez (@AOC) September 22, 2021

Bob Carey, the former director of the Office of Refugee Resettlement under the Barack Obama administration, told Insider that, “There are few good solutions for the administration during a time of multiple crises in the context of COVID.”

“While the use of Guantanamo is a regrettable solution, it is far better than forced return to Haiti in the context of current conditions there,” he added. “Guantanamo is outside the US and that has legal implications as well, but wherever people are, they have a right to make an asylum claim.”

In recent weeks, as thousands of Haitians have crossed mainly into Del Rio, Texas, fleeing instability, an earthquake, and violence in Haiti, the Biden administration has resumed deportation flights to Haiti, and scenes of border agents on horseback scattering Haitian migrants have stirred outrage and prompted an official rebuke from the administration.

Read the original article on Business Insider

August 10, 2021

Biden is trying to appease conservatives – not protecting public health – by keeping a Trump-era immigration policy in place during the pandemic, a Harvard expert argues

Mexico migrant Ciudad Juarez phone — Migrants from Central America us mobile phones to try to register to request asylum in the US, at Pan de Vida shelter in Ciudad Juarez, Mexico, February 19, 2021.
REUTERS/Jose Luis Gonzalez

The Biden administration has extended a Trump-era policy that effectively closes the border.
Title 42, issued by the CDC, limits the right to seek asylum, with exceptions for children.
Public health and legal experts have challenged the order. The ACLU is suing.
See more stories on Insider’s business page.

President Joe Biden took office pledging to reverse the last administration’s xenophobic approach to the border. One of his first acts was allowing unaccompanied children to once again seek asylum within the United States.

But the administration has not extended that privilege – that internationally recognized legal right – to single adults or families, allowing the latter in only when unable to expel them to Mexico. Citing the Delta variant, the US Centers for Disease Control and Prevention said it was sticking with that policy, known as Title 42, for the time being.

Jacqueline Bhabha is a scientist and professor at the Harvard T.H. Chan School of Public Health, where she lectures on the practice of health and human rights. She is also an expert on the issue of migration and refugee protection.

Bhabha spoke to Insider to offer her analysis of Title 42 and the Biden administration’s handling of COVID-19 at the border.

When Title 42 was pushed by the Trump administration, it was seen by many as an immigration restriction, first, with a health justification. And so many people are surprised to see that the Biden administration has extended it with the same rationale. What do you make of that, as a public health expert. Because there are migrants that have COVID and there are a lot of politicians around the border who are, I think, grandstanding about positive migrant cases contributing to the current spike. Is this a matter of politics or public health?

Everybody realizes that the public health risks related to the pandemic are serious. But they’re no more serious for migrants than they are for others. And international law is very clear that any public health measure that’s taken – to prevent somebody from seeking asylum, which is what we’re talking about here – has to be reasonable and proportionate. Reasonable means that you have to show that you’ve taken due consideration of the specific health risk, and proportionate means that you have to show that the health risks outweigh other risks that the person might be facing. So you have to do a kind of balancing act. If there was nothing at stake – if somebody was just coming for a holiday, if somebody’s just coming, you know, cause they wanted to go to Disneyland – then you might well argue there’s no point in incurring any health risk because it’s not a very significant purpose that the person’s wanting to cross the border for.

But if somebody is fleeing from gangs or somebody is fleeing from violence or somebody is fleeing because they feel there is a threat to their life, then you have to measure very carefully the balance between the public health risk and the other stakes at issue. And you can of course take all sorts of measures to mitigate public health risks. I don’t think anybody is suggesting that people shouldn’t be tested; that people should be required to wear masks; that people shouldn’t be placed in contexts where they could socially distance. All these are perfectly legitimate measures, which we impose on the domestic population, where appropriate.

What is not appropriate is to have a blanket ban that really discriminates against a particularly vulnerable population. In the case of the border, and the extension of the CDC kind of ban, to people trying to obtain asylum in the US, I think the legitimate argument is that the measures that continue to be taken by the Biden administration are not proportionate – they’re not reasonable.

It’s great that unaccompanied minors are no longer being turned back, as they were under the previous administration, but it’s unacceptable that families could be separated – that people are still being sent back to situations where they’re really at risk. We know the other side of the US-Mexico border. It’s a very dangerous area. There’s no dispute about that. The administration doesn’t challenge that. I think for those reasons people are really shocked and very disappointed that the administration has continued with this decision. And I think there is a suspicion that it’s politically driven rather than health-driven – that because of the criticism from the Republican Party and others on the right about mismanagement of the border, numbers of people entering, that the Biden administration made a kind calculation that this is some way of appeasing that constituency.

I think that’s regrettable. I think that’s unjust. And I think there is really no public health justification for this approach.

What do you make of the Biden administration’s handling of COVID at the border? Is there anything to the Republican criticisms? For example, we’re seeing Catholic Charities in the Rio Grande Valley bear the burden of testing all the migrants and finding them quarantine space in local hotels. It seems like the federal government is passing the problem on to these NGOs.

I think that there certainly is dramatic underfunding of federal resources to manage the border. And this is a historic problem, which was aggravated in the previous administration. There’s a long legacy of underfunding; of far too few asylum officers; inadequate funding of facilities; inadequate funding for shelter. That’s not easy to correct overnight. I personally think that much more funding should be made available as a massive urgency, given the human rights obligations that the US has and much of the underlying responsibility for the untenable situation in many of the Central American countries.

I think there’s a huge responsibility to invest more deeply and more vigorously in adequate resources – training, and having officials there so that people don’t have to wait so long to get an interview, so that places aren’t overcrowded, so kids aren’t left with very little stimulation, no schooling, in these shelters.

The US, as a wealthy country, is doing an extremely poor job. We wouldn’t tolerate these levels of delays if it was to do with our tax returns or processing business permit applications. This is a federal obligation. I do understand that, given the last four years and actually even before, there’s a whole problem here of an agency that’s been decimated that needs to be shored up. I think it is disappointing. I think that for sure Catholic Charities and other NGOs are having to step up to the plate, as they always have. This needs to be radically addressed. People are waiting to see substantial investments.

I think it’s fine to talk about root causes, as Kamala Harris and others have done, and taking steps to increase safety and security as much as possible in Central America – to increase access to employment, to increase schooling and healthcare and all that sort of social infrastructure. Of course, that’s going to contribute, but these are not things that change overnight. And in the meantime, I think that the kind of bare-bones approach to processing really serious cases, which have human rights implications, it’s regrettable. So, yes, I think that the Biden administration has not done enough. I think it’s hard to correct this immediately. And I think – I hope – going forward that some of the more inspiring terms that were made during the campaign about reversing course on immigration, having a more rights-based approach – I hope those claims really bear fruit down the light. But I think we’re seeing a kind of tussle, already, within this administration between different constituencies with different agendas.

Given the kind of logistical and, frankly, political realities of the border – of the underfunding of the departments that need to process asylum claims – is there still no justification in your view for a Title 42-style approach? I’ve reported on child migrants held at Fort Bliss, where there’s been reports of COVID outbreaks, of course, but also of depression – children not being given the resources to thrive in it in a detention environment. Given the constraints, bottom line, is it okay to introduce migrants into that situation?

As I say, you can test them. There are a lot of public health measures that you can take. But if places like Disneyland are open, if people are being able to congregate for entertainment, people who are seeking life-protective shelter really should have a stronger claim on our due diligence. So it does feel as if this public health exclusion is a sort of pretext. You could also argue – and I’m not suggesting that one should roll back the fact that children are admitted – that a constituency is already being allowed in because, politically, it seems unworkable to exclude teenagers. Then doesn’t that puncture your public health argument anyway? So we need to take the right public health measures, but they need to be proportionate, they need to be reasonable, and they can’t be discriminatory. And I think this is really a stain on the Biden administration’s record. It’s really disappointing.

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August 9, 2021

The Biden administration and Republicans alike are using public health to play politics at the border

Honduran Eric Villanueva, 31, carries his son Eric, 7, onto the shore of the Rio Grande after crossing the US-Mexico border on a raft into the United States in Roma, Texas on July 9, 2021.
PAUL RATJE/AFP via Getty Image

In March 2020, the Trump administration used the pandemic to justify shutting down the asylum system.
Under President Biden, children and some families are now able to apply for refuge.
But despite GOP claims, the administration has not embraced a policy of “open borders.”
See more stories on Insider’s business page.

In times of crisis, foreigners are historically scapegoated by politicians, easy and convenient to blame for the problems that have been allowed to fester here at home – and unable, themselves, to vote the lawmaker out of office.

With Florida now accounting for nearly a quarter of all new COVID-19 cases in the United States, the Delta variant forcing Disney World to bring back mandatory masking, Gov. Ron DeSantis this month blamed the supposedly “open border” policies of President Joe Biden. “Whatever variants there are around the world,” he asserted, “they’re coming across that Southern border.”

It was a jarring performance from a Republican who has balked at basic public health measures, insisting on keeping indoor dining up and running – and maskless – throughout the various waves of the pandemic. He has also barred mask mandates for various local entities and prohibited vaccine passports. DeSantis has even boasted of his own open-border policy, welcoming visitors from across the country to his “oasis of freedom” from generally accepted public health decisions meant to curb our ongoing pandemic.

Viruses do not discriminate on the basis of nationality, but the same cannot be said for politicians.

And it’s not just one side of the aisle. Democrats are now in charge of border policy, and while it is not true that they are dealing with it in the exact same way as the Trump administration before it, in many respects that policy is one of continuity, not change: For most people, the US remains closed. And the trickle allowed in is certainly not responsible for more than 20,000 new cases a day in the Sunshine State.

Under a Trump policy called “Title 42,” a policy directive issued by the US Centers for Disease Control and Prevention, the Biden administration has denied hundreds of thousands of people their internationally recognized right to seek asylum, immediately expelling them from the country instead. The policy, which effectively closes the border due to the pandemic “is not an immigration authority, but a public health authority,” according to the US Department of Homeland Security.

According to The Wall Street Journal, however, that’s not how people in government during the Trump years saw it. Last year, the paper reported, the exact same order “was met with deep resistance from senior officials at the US Centers for Disease Control and Prevention and was conceived not by public-health experts but by Stephen Miller,” the former president’s far-right immigration advisor. And it was opposed at the time by a slew of outside medical experts, who advocated testing and quarantining instead of a blanket prohibition.

The Biden administration has made exceptions to Title 42. Unaccompanied children are no longer subject to the policy. And many families who cross the Rio Grande have been able to stay to pursue their asylum claims – not because the administration would like them to, per se, but because state governments in Mexico are now refusing to accept their return.

There is no reason to believe a child is less likely to carry the virus than their mother or father or a single adult who crosses the border. It’s a matter of optics and liberal sensibilities. Sending kids back to be preyed upon south of the border is not a good look; there is far greater tolerance for being inhumane to a grown-up human being who may be fleeing the same violence and political repression, even if this too results in families being separated.

Under international law, this is problematic. Under the Refugee Convention, which the US committed itself to in 1951, signatories are obligated to consider all asylum claims – even in times of war or other “exceptional circumstances,” the treaty only allows certain exceptions, on a case-by-case basis, that still require an actual ruling on the asylum-seeker’s claim.

“The US has the right to confine asylum-seekers pending COVID testing results, a reasonable thing to do to protect the critical interests of Americans during a pandemic,” James Hathaway, a professor at the University of Michigan Law School, told Insider. “But it is unlawful to respond with a blunderbuss-style general policy of closing borders to refugee claimants or refusing to process their claims in the usual way – which is what Title 42 does.”

The American Civil Liberties Union agrees: it’s suing to stop the order from being enforced.

“We gave the Biden administration more than enough time to fix any problems left behind by the Trump administration,” Lee Gelernt, an ACLU attorney, said in a statement, “but it has left us no choice but to return to court.”

Legality aside, some medical experts likewise see no more justification for Title 42, now, than when the Trump administration rolled it in March 2020.

“It does feel as if this ‘public health’ exclusion is a sort of pretext,” Jacqueline Bhabha, a professor and scientist at the Harvard T.H. Chan School of Public Health, said in an interview.

In part, because the asylum system was decimated by its predecessor, and already chronically underfunded, the administration has struggled to handle the influx of migrants that it has allowed. Children at one facility in Texas have complained of overcrowding and ensuing depression, while the testing and quarantining of families has been left to nonprofit groups that have struggled to ramp up their own capacity to help hundreds of new people each day.

Republicans have scored points off this “crisis at the border,” abandoning the discourse of personal freedom to advocate a heavy-handed response to the spread of the Delta variant: prohibiting the freedom of movement, if not for tourists – most, from around the globe, are welcome to visit Disney World – at least for those seeking refuge.

The logistical challenges facing the Biden administration are real, and not entirely its fault; even the litigious ACLU conceded that time was needed to address them. But the administration appears to have decided to hide behind fears of contagion to justify what is ultimately a public-relations decision: to not exacerbate what it sees as a losing battle over migration.

Pundits can debate whether that is smart politics. But it is not what the United States agreed to at the international level, nor is it internally consistent.

Think, after all, of the children: there is a pandemic, yes, but these kids have fled here for grave reasons – and this White House has determined that the obligation to not return them to danger can indeed be fulfilled while taking steps to mitigate the threat to public health.

It’s just unwilling, for now, to extend that logic to others.

Have a news tip? Email this reporter: cdavis@insider.com

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March 19, 2021

A growing number of migrant children are reaching the border. Here’s what experts say the Biden administration can do to address the situation.

immigrant children — Children play as families of asylum seekers wait outside the El Chaparral border crossing port as they wait to cross into the United States from Tijuana, Mexico on February 19, 2021.
PATRICK T. FALLON/AFP via Getty

The number of unaccompanied migrant children reaching the US Southern border is rising.
Overall migrant encounters have also increased due to a yearlong backlog stemming from COVID-19.
Experts say there are four key steps the Biden administration should take to address the situation.
See more stories on Insider’s business page.

The number of unaccompanied migrant children detained at the US Southern border has more than tripled in the past few weeks, straining facilities and ramping up pressure on the Biden administration to address the situation.

But while the thousands of children being held in Customs and Border Protection facilities may harken back to the horrifying images of the Trump administration’s family separation policy, immigration experts say the reality of the current border situation is more complicated than a simple “crisis.”

What’s happening and why?

The number of unaccompanied migrant children detained at the border has continued to rise throughout the first three months of 2021. According to senior administration officials, Customs and Border Patrol had approximately 4,500 unaccompanied minors in holding as of Thursday, while the Department of Health and Human Services has more than 9,000 children currently in its care.

Nearly 3,000 of the children detained by Border Patrol have been held beyond the 72-hour limit permitted by federal law before a child must be moved to an HHS facility, CBS News reported Tuesday.

But the increased numbers go beyond just children. Border agents encountered approximately 100,000 individuals attempting to enter the country in the month of February – a 28% increase over January, according to senior administration officials. January saw nearly 78,000 migrant encounters, a rate more than doubled from the same time last year, The New York Times reported.

Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, told Insider the border is seeing an increased number of migrants, in part, because of a backlog of people who have not been allowed in to the country over the past year due to the COVID-19 pandemic.

As the coronavirus pandemic took hold in spring 2020, former President Donald Trump implemented a Centers for Disease Control and Prevention regulation known as Title 42 that effectively halted all crossings at the border in the name of COVID-19 prevention.

Since taking office in January, President Joe Biden has mostly maintained the policy, lifting the order for unaccompanied minors, allowing only children to cross and presenting a heartbreaking choice for migrant parents who reach the border: full family expulsion or send their child across alone.

Experts say Biden’s partial repeal of Title 42 has contributed to the increase in unaccompanied minors, while its year-long existence has led to a backlog resulting in the higher number of overall border encounters so far this year.

The increase could also stem in part from a friendlier administration, according to Southern Border Communities Coalition steering committee member Pedro Rios, who said some immigrants may see the Biden administration as a more welcoming government, though Rios stressed he was hesitant to suggest Biden was the “absolute” reason behind increasing migrant numbers.

In fact, Biden spoke directly to Central American migrants in a televised interview this week, rejecting that notion and telling them: “Don’t come over.”

“I heard the idea that they’re coming because I’m a nice guy,” he said.

Politicians and news outlets have responded to the increased numbers with alarm, calling the situation a “surge,” a “crisis,” and “unprecedented.”

But experts say that’s not quite the case.

Is the current border situation really a crisis for the administration? Or a pattern?

According to three immigration experts that Insider spoke with the situation is not yet a “crisis.”

“We’ve had higher numbers in the past and every time something like this happens, they call it a crisis, or a surge, or an influx,” Carol Anne Donohoe, managing attorney for Al Otro Lado’s family reunification program, said. “How many crises, surges, and influxes do you have before you say this is actually a pattern and we should do something proactively?”

Senior administration officials echoed that idea in a media call Thursday.

“Children presenting themselves at the border is not a national crisis,” one official said. “January 20 was not the moment that all of a sudden the border looked differently. Numbers increase and decrease all the time.”

Vicki Gaubeca, Southern Border Communities Coalition director, told Insider the situation is neither new nor unexpected, though the pandemic has complicated the response typically led by non-governmental organizations and volunteers at the border.

“I don’t think people should be panicking, it’s not a crisis,” Gaubeca said. “I agree with the Biden administration, it’s just a challenge that we need to figure out how to address.”

Earlier this month, Homeland Security Secretary Alejandro Mayorkas denied there was a “crisis” at the border, calling the situation a “challenge.”

Gelernt agreed, saying the federal government has more than enough resources to handle the numbers, which are not historically high.

He also cautioned that the numbers could be misleading. Border counts of encounters and apprehensions don’t reflect the number of individuals seeking to enter the country, but instead, account for each incident, which often results in the same individual being counted multiple times.

Though he doesn’t think the current border circumstances constitute a crisis for the federal government, Gelernt did stress that the ongoing situation is a humanitarian crisis.

During his presidential campaign, Biden presented himself as the more humane immigration candidate. Now, the president faces growing political and public pressure to address the situation and avoid the horrifying aspects of the Trump administration’s immigration efforts.

Here are four steps immigration experts say the Biden administration should take to avoid a real crisis.

GettyImages 1231478430 — Dareli Matamoros, a girl from Honduras, holds a sign asking President Biden to let her in during a migrant demonstration demanding clearer United States migration policies, at San Ysidro crossing port in Tijuana, Baja California state, Mexico on March 2, 2021.
Photo by GUILLERMO ARIAS/AFP via Getty Images

End Title 42

All four experts agreed – the first and fastest step Biden can take to address the growing number of unaccompanied minors is to revoke the Trump-era holdover order.

Citing public health concerns, Trump invoked Title 42 last March, expelling all people apprehended between ports of entry and effectively eliminating migrants’ right to seek asylum in the US.

“We expected the Biden administration to eliminate that policy. It has not done so for adults or families yet, though it has for unaccompanied children,” Gelernt said. “Advocates throughout the country are becoming impatient.”

Ending Title 42 would allow parents and children to enter the country together and would restore asylum seekers’ right to a hearing.

Additionally, the Trump administration’s invocation of Title 42 likely did little to slow the spread of the virus, according to Donohoe and Gelernt, who both noted the federal government overruled the Centers for Disease Control last March when the agency’s top doctor told federal officials there was no evidence that implementing Title 42 would slow the spread.

Donohoe said the CDC has made it clear that border activities can continue safely if migrants are tested for COVID-19 and quarantined after crossing.

“I would argue that if we were concerned about immigrants and public health and all of that, we wouldn’t have our ICE detention facilities filled during a pandemic,” Donohoe said. “So my only guess is that this is a way to stem the flow of immigrants and asylum seekers.”

The ACLU is currently in discussions to settle a lawsuit over Title 42, Gelernt told Insider.

“We hope that the Biden administration is not allowing politics to interfere with its decision to provide families with asylum hearings and likewise, hope that the Biden administration is not using a public health measure to control migration flows unrelated to public health requirements,” Gelernt said.

Provide more funding and resources for holistic border support

Experts also encouraged the Biden administration to increase federal funding and resources to both address the growing numbers of migrants and avoid the horrific conditions that often come with influxes.

The agency in charge of processing asylum seekers – Customs and Border Protection – isn’t known for its welcoming demeanor, according to Gaubeca, who said the agency’s union was openly supportive of Trump both times he ran.

AP21061013052922 — Customs and Border Protection officers stand with shields at the border crossing, Monday, March 1, 2021, seen from Tijuana, Mexico.
AP Photo/Gregory Bull

“I think they like the idea of just being enforcement only. They don’t like having to take care of unaccompanied children,” Gaubeca said. “Border patrol wasn’t trained to take care of families.”

As a result, Gaubeca said the Biden administration should direct resources toward creating community-based welcoming centers staffed by medical professionals, trauma specialists, and childcare specialists.

Gelernt also stressed the need for more funding, urging the administration to coordinate with NGOs working around the border that have been preparing for increased migrant numbers for months. These organizations are ready to COVID-test families, house migrants, and provide basic necessities, according to Gelernt, but they need coordination from the Biden administration to do so successfully.

Gaubeca advocated for targeted federal funding toward addressing the root causes of mass migration – a step she said the Biden administration has already started to take by including money to address violence in Central America in its US Citizenship Act of 2021.

Don’t place children in carceral settings and keep their stays short

The surest way for the Biden administration to avoid the public outcry of 2018 that stemmed from immigrant children in cages is to simply keep kids out of cages, experts said.

Children should not be placed in carceral settings or unlicensed facilities, according to Donohoe and Gelernt, but instead should be kept in child-appropriate settings with small group settings and a high staff-to-child ratio.

“The idea is not to warehouse hundreds of children in one location,” Donohoe said. “It’s to spread them out into more home-like settings until…they can do their due diligence to find a sponsor or a safe foster family.”

A senior administration official said Thursday that the seven-day average length of care for unaccompanied migrant children in HHS facilities is 34 days. The official said the administration is committed to trying to reduce that number.

Donohoe and Gelernt both encouraged the administration to focus on quickly locating sponsors or relatives for unaccompanied children and to keep their detainment short. In order to expedite that process, other immigrants in the country acting as sponsors shouldn’t be made to feel afraid to come forward and claim a child, Donohoe said.

For-profit emergency shelters have drawn criticism from immigration experts who decry the centers’ lack of transparency and less-than-stellar conditions. While most child migrant facilities are subject to state licensing requirements, according to The Washington Post, temporary surge centers like the Texas tent facility, Carrizo, that the Biden administration reopened late last month, are not.

Licensed facilities are also more cost-efficient and well-regulated than overflow facilities, according to Donohoe, who said privately-run overflow facilities cost between $850 and $1,000 a day per child while licensed facilities cost between $200 to $300.

AP21057782014319 — In this March 27, 2019, file photo, Central American migrants wait for food in a pen erected by U.S. Customs and Border Protection to process a surge of migrant families and unaccompanied minors in El Paso, Texas.
AP Photo/Cedar Attanasio, File

Still, she cautioned people against latching on to easy sound bites like “kids in cages.”

“Cages come in many forms,” Donohoe said. “It doesn’t make it any better that it has cement walls versus a chain-link fence.”

Change the public perception of the border

Conversations about immigrants coming to the US often rely on water imagery and metaphors – like “surge” “flood,” “flow,” “stream,” and “waves” – according to Rios, who said that language tends to degrade and dehumanize the people who are migrating and their reasons for doing so.

“I think it takes away from some of the structural problems that are causing the reasons for why people are migrating,” Rios told Insider.

The other experts agreed.

“I do think there’s a shift in how we can talk about the border, not as being a place that needs to be secured but as a place that needs to be managed better,” Gaubeca said. “Changing the narrative about what the border is is really important.”

According to Donohoe, two institutions have a key role to play in changing that narrative: the Biden administration and the media.

“Public perception is driven by the press and what the administration says,” she said. “And I think any administration is hyper-aware of that.”

Calling the situation a “crisis” or a “surge” emboldens conservatives to ramp up criticism over Biden’s handling of immigration, according to Donohoe, who said that public disapproval and resulting panic often leads to the creation of more overflow facilities and harsher policies.

For four years Trump “dehumanized” immigrant populations and propagated a narrative that migrants were coming to take advantage of the US, Gelernt said. As a result, Biden now has a responsibility to change the narrative about who these people are and why they’re coming, according to the attorney.

“I would urge people to try not to think of immigrants in the abstract, but to think about the immigrant you know,” Gelernt said.

AP20338121440826 — In this Wednesday, Jan. 22, 2020, file photo, David Xol-Cholom, of Guatemala, hugs his son Byron at Los Angeles International Airport as they reunite after being separated during the Trump administration’s wide-scale separation of immigrant families, in Los Angeles.
AP Photo/Ringo H.W. Chiu, File

How confident are experts the Biden administration will take these steps?

Donohoe, Gaubeca, and Gelernt all signaled they were cautiously optimistic about the Biden administration’s immigration efforts, acknowledging that his predecessor “wreaked havoc” on the border and left an “enormous mess” behind.

Still, Donohoe said immigration experts are “always wary,” and have “no illusions” that a Democratic president guarantees change.

Donohoe said Secretary Mayorkas has signaled the administration may soon be making changes to Title 42 concerning families – a move experts are impatiently awaiting.

“[The Biden administration’s] certainly more of a humanitarian administration than the one previous, ” Donohoe told Insider. “So anything that they undo is moving forward.”

Gaubeca too, said she’s seen signals the administration wants to make changes, but emphasized that processes take time.

“Realistically speaking, there are a lot of steps that the administration knows they have to take, but I think they’re trying to do things in a very measured way, and they’re also trying to build something that was pretty much destroyed by the former administration,” Gaubeca said.

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