Family detentions? Why Biden is tacking right on immigration.

On the campaign trail, then-candidate Joe Biden promised to reform the country’s immigration system by undoing many of the policies put in place by former President Donald Trump. It is possible to have a “fair and just” system that reflects America’s values and welcomes migrant families, Mr. Biden argued.

Now, more than two years into President Biden’s term, his administration is reportedly considering reinstating the practice of detaining families that cross the U.S. border illegally – a policy Mr. Biden previously criticized and that his administration had largely ended, transitioning three family detention centers into facilities for single adults. The Department of Homeland Security has been relying on alternative approaches for families, such as allowing them to enter the country with ankle monitors or other tracking devices while their immigration cases move forward. 

While family detentions became a controversial focal point of the Trump administration, the policy predates the Republican president. The South Texas Family Residential Center in Dilley – the largest detention center in the country – actually opened under former President Barack Obama. 

President Biden’s potential policy reversal on family detentions suggests that he, like many of his predecessors, is struggling with how to balance order with compassion at the U.S.-Mexico border. Particularly when it comes to children.

The 2022 fiscal year set a record for migrant encounters, with more than 2.7 million documented nationwide, according to data from Customs and Border Protection, although the number of unique individuals apprehended is almost certainly less because some migrants attempt the crossing multiple times.

These spikes have come at a time when migration is up globally, says Aaron Reichlin-Melnick, policy director at the American Immigration Council. As Central Americans flee authoritarian regimes and living conditions that have only further deteriorated during the COVID-19 pandemic, more migrants have headed for the U.S.-Mexico border. The record numbers seen in 2022 can be attributed in large part to asylum-seekers from Venezuela, Cuba, and Nicaragua. 

Some experts say President Biden’s pro-immigration rhetoric could also have played a factor, with migrants expecting an easier time at the border than during the Trump administration. “It is clear that many migrants perceived there to be a greater shift in U.S. policy than there actually was,” says Mr. Reichlin-Melnick.

Early statistics for fiscal year 2023 suggested it was on track to surpass the previous year. But these figures dropped sharply in January, following an announcement by Mr. Biden that Nicaraguans, Haitians, and Cubans who irregularly cross the U.S. border will be expelled to Mexico and ineligible for a new parole process, similar to the policy in place for Venezuelans. The move was criticized by groups like Human Rights Watch, which characterized the Biden administration as “reviving abusive Trump-era policies.”

Many experts say the recent shift reflects growing concerns in the administration about the looming rollback of Title 42, another Trump-era immigration policy that is set to expire. 

“It’s not a surprise to me that the Biden administration has taken a rightward shift in its policies,” says Brad Jones, an immigration policy expert at the University of California, Davis. “Once Title 42 lifts ... we’re going to see an increase [of migrants] like we’ve never seen before. Right now, I think the Biden administration is really scrambling as to what to do.”

What is Title 42?

As with family detention, Mr. Biden campaigned on ending Title 42, a public health emergency order invoked by Mr. Trump at the start of the COVID-19 pandemic. The order allows Border Patrol agents to turn away migrants seeking asylum without hearing their claims, which critics argue violates U.S. law. By January 2023, more than 2.6 million migrants had been expelled under this rule.  

Unaccompanied children, however, can’t be expelled under Title 42 due to a federal judge’s order in late 2020. This exception, along with worsening economic struggles at home, led many parents to make the difficult decision to send their children across the border alone. Border Patrol encountered almost 147,000 unaccompanied minors in 2021 and more than 152,000 in 2022 – more than double the rates of previous years. And while the Department of Health and Human Services is required to monitor these children after they are released to sponsors within the United States, an overloaded system has led to serious lapses. A recent New York Times investigation found that many unaccompanied minors have wound up working dangerous jobs in violation of child labor laws. 

The Biden administration first attempted to repeal Title 42 in April 2022, when the Centers for Disease Control and Prevention (CDC) announced the policy was “no longer necessary” for public health. Already, at that point, critics were suggesting the measure had little to do with public health and that the administration was simply reluctant to repeal it amid record numbers at the border. 

“[The administration] is using Title 42 as a crutch,” says Tara Watson, an economics and immigration expert at the Brookings Institution. “We already have this big backlog and people are still coming. ... But instead of fixing that problem, which will take a while, they are using a stopgap, this not-ideal measure, to try and control things at the border.”

After the CDC’s April announcement, a federal judge blocked the Biden administration’s efforts to end the policy. The case has been moving through the courts ever since, even making its way to the Supreme Court. 

But the Supreme Court removed the case from its docket, following the Biden administration’s announcement that the COVID-19 public health emergency will expire on May 11. 

What’s next?

The news about a potential revival of the family detention policy may serve as a preemptive deterrent for migrants considering coming to the border following the end of Title 42 on May 11, say experts.

And while some argue the Biden administration should already have laid out a post-Title 42 plan, there are still measures the administration could take over the next two months. Dr. Jones, for example, suggests increasing the number of shelters at the border and connecting local governments with nongovernmental organizations that can provide assistance. 

Others say Congress should take this moment as further evidence that the nation’s immigration system – which hasn’t seen comprehensive policy reform in more than two decades – is broken and needs to be urgently addressed.

“Congress can make laws that are long-standing, versus what happens when the administration switches and the whole policy switches. It’s terrible for immigrants; it’s terrible for the American people,” says Dr. Watson. “If you just give people hope that there is a pathway ... people might not just show up at the border, because there is a better way.”

Still, she and others agree that any real systemic reform seems highly unlikely anytime soon, given how divisive the politics of immigration have become – and the reality of an election cycle that’s already ramping up. While there may be some small measures with bipartisan support that Congress could agree on, “I don’t think there is hope for comprehensive reform in the immediate future,” says Dr. Watson.