The Biden administration is reportedly planning to detain large numbers of immigrant families again this spring. This is part of the administration’s plan to replace Title 42 with a new policy that will make it very difficult for the majority of migrants crossing the border to qualify for asylum in the United States.
According to news reports, U.S. Immigration and Customs Enforcement (ICE) is considering sending families who’ve crossed the border to the notorious Dilley detention center—opened during a 2014 crackdown on immigrant families under President Barack Obama—reversing a 2021 decision to stop holding families there.
If it restarts mass family detention, the Biden administration won’t just be reversing its own 2021 move. It will be backtracking on a stance that candidate Joe Biden seemed pretty unequivocal about: “Children should be released from ICE detention with their parents immediately,” he tweeted in June 2020, in response to a court ruling requiring the Trump administration to release families from Dilley and other facilities. “This is pretty simple, and I can’t believe I have to say it.”
It’s important to understand that the choice to restart family detention isn’t an isolated decision. It’s part of a larger plan the Biden administration is currently developing for asylum seekers and other border crossers after it lifts the current Title 42 order. The “public health” policy allows border agents to expel many migrants to Mexico or to their home countries without giving them a chance to seek asylum. As it stands, the Biden administration will be required to abandon Title 42 once it lifts the national state of emergency due to COVID-19, which it plans to do on May 11.
Title 42 ignored the right to asylum under U.S. immigration law. Ending it should have been the opportunity to re-establish and safeguard that right. Instead, it appears the administration plans to bring back policies from previous border crackdowns. Like the Trump administration, this type of deterrence-based enforcement hopes to scare potential asylum seekers out of trying to reach the United States at all and punish those who made it to the U.S. so harshly that they’ll wish they hadn’t.
The Department of Homeland Security has proposed an asylum transit ban, which would make it all but impossible for someone to qualify for asylum in the U.S. if they couldn’t make an appointment via the notoriously unreliable and chronically overbooked CBP One app. That regulation wouldn’t apply to children crossing into the U.S. on their own, but it would apply to families who cross together.
Crucially, the new asylum restriction would be applied to asylum-seekers during an initial screening interview known as a “credible fear interview.” It seems as if the Biden administration is considering a return to mass family detention as part of its plan to implement this new restriction. The government would keep families detained until it could interview them, establish they didn’t qualify for asylum under the new rule, and deport them.
In the past, attempts to detain most immigrant families until deportation have run into serious legal obstacles. The longstanding government agreement known as the Flores settlement states that children must be held in the least restrictive setting available. In practice, that has generally meant that if the government can’t deport a family after detaining them for a few weeks, it has to consider releasing them.
The new transit ban could, however, drastically speed up the timeline on which families can be deported, by making it far more difficult for them to pass an initial asylum screening. The actual process laid out in the proposal is convoluted, but if the administration wants to implement it quickly—and if it decides to keep families in detention centers that have long and shameful track records of denying immigrants access to counsel—the one-two punch of family detention and the transit ban could create a deportation assembly line for families. If that happens, asylum-seeking parents and children who came to the U.S. to seek protection would instead get kicked out without a single breath of free air.
The transit ban regulation isn’t finalized yet—the public has until March 27 to comment on the proposal, and the administration is legally obligated to consider and respond to all comments. But the news about potential plans to restart family detention makes it clear that the administration is rushing forward with planning to implement the regulation—against families as well as single asylum seekers—when the COVID emergency lifts.
As is so often the case, there is a legitimate challenge here – but one with a variety of solutions that wouldn’t be unnecessarily cruel. It does take time to process asylum-seekers: to perform medical and criminal checks, make sure their asylum claims stand up to initial scrutiny, and set up a case before an immigration judge. The alternative – simply dumping families off at bus stops in El Paso with no guidance and no court dates – doesn’t serve either the government or asylum seekers.
But the administration has other options available to address this problem that don’t involve indefinitely holding children against their will. It is currently using a variety of options to ensure that asylum seekers make their court dates without keeping them in jail-like conditions. It has laid the groundwork for the use of processing centers at the U.S.-Mexico border, which could be established in a way that made them more appropriate for children than an immigration jail.
Not only are family detention centers incredibly poor places for children, they are also notoriously wasteful locations when compared to the alternatives. Instead of spending money on family detention, it could be building out more capacity at ports of entry to process families seeking asylum without forcing them to cross and turn themselves in to Border Patrol.
Instead, it may be going back to the same policies—in the same places—that candidate Joe Biden so unequivocally rejected.
This is pretty simple, and we can’t believe we have to say it. Don’t restart mass family detention.