U.S. Is Said to Consider Reinstating Detention of Migrant Families
Women and children walking inside a detention center for families in Dilley, Texas, in 2019. The practice of detaining migrant families has been fiercely debated over the past four presidential administrations.Credit...Ilana Panich-Linsman for The New York Times
The Biden administration is considering reviving the practice of detaining migrant families who cross the border illegally — the same policy the president shut down over the past two years because he wanted a more humane immigration system, officials familiar with the discussions said Monday.
Although no final decision has been made, the move would be a stark reversal for President Biden, who came into office promising to adopt a more compassionate approach to the border after the harsh policies of his predecessor, former President Donald J. Trump.
The Biden administration has largely ended the practice of family detention, instead releasing families into the United States temporarily and using ankle bracelets, traceable cellphones or other methods to keep track of them.
But the administration has turned to more restrictive measures as it struggles to handle a rise in migrants fleeing authoritarian governments and economic ruin in their countries. Officials also fear a surge at the border after May 11, when a public health measure that has allowed authorities to swiftly expel migrants expires.
Mr. Biden’s tough new measures, including a crackdown announced last month that could disqualify a vast majority of migrants from being able to seek asylum at the southern border, have infuriated advocates who say the president is breaking campaign promises and embracing a Trump-era approach to immigration.
“Ending the inhumane practice of family detention has been one of the only positive immigration policy decisions of the Biden administration,” said Leecia Welch, a lead lawyer in the case that led to the 1997 Flores settlement, which limits the time children can spend in detention and establishes minimum standards for holding facilities.
“It is heartbreaking to hear there could be a return to the Trump-era use of this practice,” she said.
The White House declined to comment, but administration officials reject any comparison to Mr. Trump and say Mr. Biden’s policies are focused on finding ways to decrease the number of illegal crossings and expand migrants’ ability to seek legal pathways.
The Department of Homeland Security said no decisions had been made as the administration prepared for the end of the public health measure, known as Title 42.
“The administration will continue to prioritize safe, orderly and humane processing of migrants,” Luis Miranda, a department spokesman, said in a statement.
But senior White House and homeland security immigration advisers have held several meetings over the past few days to discuss their options, including reinstating the family detention policy, according to five current and former administration officials with knowledge of the discussions.
The officials said the Department of Homeland Security is outlining what it would need to do to restart temporary family detention by May 11.
One of the officials cautioned that the administration would follow the court settlement that sets a 20-day limit for detaining families, rather than holding them for weeks or even months as previous administrations did. Another option would be continuing the practice in place now — releasing families into the country, where they would be tracked and required to report to an Immigration and Customs Enforcement field office, the official said.
Proponents of family detention argue that it would deter migrant families from making the trip north. But the practice has long been controversial, in part because of years of scientific consensus that detaining minors, even with their parents, can cause developmental damage.
Officials fear a surge of migrants at the border after May 11, when a public health measure that has allowed authorities to swiftly expel migrants expires.Credit...Paul Ratje for The New York Times
Two of the federal government’s medical consultants in 2018 said they identified a “high risk of harm” to migrant children at the facilities. The consultants uncovered serious problems, including a child who lost a third of his body weight and an infant with bleeding of the brain that went undiagnosed for five days.
Family detention was also used by former Presidents George W. Bush and Barack Obama. Both faced criticism for the conditions in which they held migrant families. One facility in New Mexico was forced to close in 2014 after complaints about the conditions there.
The Trump administration tried to expand the practice and detain families indefinitely to discourage migrants from crossing illegally. But Mr. Trump’s attempts to end limits on how long minors could be held were blocked by the courts.
The Biden administration would face serious logistical obstacles in reinstating family detention, starting with finding space to hold families. The facilities also would need to be set up to provide educational programs and playgrounds. The spaces that previously housed families are now used for single adults.
Immigration and Customs Enforcement, which oversees the detention network, is already facing a budget shortfall in the hundreds of millions.
The plan also assumes that government officials would be able to screen families for asylum quickly, admitting them or deporting them within the 20-day window. The average stay in an ICE detention center is about 37 days, according to internal data. In addition, there will never be enough space to detain all migrant families, the officials said. And the government would need a much larger fleet of planes to deport everyone.
Three of the officials who spoke to The New York Times described concerns that family detention would encourage parents to send their children to the U.S. border alone instead of risking detention as a family. Children who arrive in the United States without a parent or legal guardian are not expelled. Instead, they are placed in government custody and eventually released to live with a family member or other sponsor. That program, overseen by the Department of Health and Human Services, has come under recent scrutiny after a New York Times investigation revealed many migrant children released to sponsors and family members are working dangerous jobs that violate child labor laws.
Critics of family detention say that putting families in the position of deciding to send their children to the United States without them is simply de facto family separation, a harsh measure used during the Trump administration when 5,500 children were separated from parents at the southern border. Mr. Biden and other Democrats have railed against the practice and pledged not to restart it.
Aside from the humanitarian implications, the family detention policy would carry political risk for Mr. Biden. Republicans have called for stricter immigration measures, accusing the president of having an “open borders” policy.
But Mr. Biden would almost certainly feel blowback from Democrats.
As a presidential candidate, Mr. Biden had campaigned against the Trump administration’s use of family detention.
“Children should be released from ICE detention with their parents immediately,” he wrote in a June 2020 Twitter post after a federal judge ordered the release of migrant children from detention facilities because of the coronavirus pandemic. “This is pretty simple, and I can’t believe I have to say it: Families belong together.”
A family detention center in Karnes City, Texas, in 2015. As a candidate, President Biden campaigned against the use of family detention.Credit...Ilana Panich-Linsman for The New York Times
by Eileen Sullivan and Zolan Kanno-YoungsNY Times