Are Biden’s Immigration Policies Stuck in the Trump Era?

This past weekend, the Times published a major investigation about migrant-child labor in the United States. The story details a “shadow work force” of minors who immigrate to the country without their parents and are funnelled into gruelling jobs, often with large corporations, that violate child-labor laws. The story also included video of Xavier Becerra, the Secretary of Health and Human Services, urging his staff to discharge minors from government facilities at an “assembly-line” pace. The reporting and the fallout—days after the story came out, the White House said it would launch a widespread investigation into child-labor practices—have highlighted questions about how much Joe Biden’s immigration policies differ from those of Donald Trump, who separated children from their parents at the border and implemented a policy, known as Title 42, that used the emergency of the pandemic to expeditiously send asylum seekers back to their home country, or the country they were last in, usually Mexico. Last week, the Biden Administration proposed a harsh replacement for the Title 42 policy, which is set to end in May, that radically limits asylum at the border.

To talk about the new Biden rule, I spoke by phone with Aaron Reichlin-Melnick, the policy director at the American Immigration Council, which advocates for better treatment of immigrants. During our conversation, which has been edited for length and clarity, we also discussed the differences between Biden- and Trump-era immigration policies, why militarizing the border without fixing our immigration infrastructure has left everyone angry, and how the government should be dealing with unaccompanied minors in its care.

How much has border policy changed since Biden became President, a little over two years ago?

Border policy has changed less than most people think, but probably more than some advocates would like to admit. The Biden Administration has largely kept the Trump Administration’s biggest border policy, Title 42, in effect. However, they have made a series of changes to treat people who cannot be expelled under Title 42 with a far less punitive, less harsh mind-set.

Title 42 is the pandemic-era health policy adopted by the Trump Administration in March, 2020, that allowed them to rapidly expel migrants who cross the U.S.-Mexico border or the U.S.-Canada border. Of course, the latter is far less common. Under the policy, migrants are not processed under normal immigration law but are instead simply taken to the nearest border or put on a plane and expelled to another country. The reality about Title 42 has been that it has almost entirely rested on Mexico to carry out. The U.S. cannot expel somebody to a country that is not willing to accept them. And during the last two and a half years, Mexico has agreed to accept many nationalities other than their own under Title 42, which has allowed both the Trump and the Biden Administrations to use this authority a lot more than they could have otherwise.

How do the two Administrations differ in terms of how people are treated?

In 2018 and 2019, we saw that there were really no depths to which the Trump Administration wasn’t willing to sink in order to deter migrants from coming to the border, including family separation, increased use of detention, and the Remain in Mexico program. [This program required asylum seekers passing through Mexico from other countries to wait there while applying for asylum in the U.S.; the Biden Administration has sought to end the program legally, and has largely discontinued its use.] The Trump Administration had no bottom, and that led to horrific scenarios, such as in 2019 when multiple children died in Border Patrol custody, likely due to overcrowding.

In 2021, when Biden took office, unaccompanied children started piling up in border stations because there weren’t enough beds in the United States to take them in. The Administration really focussed on keeping down overcrowding in Border Patrol cells. And whereas the Trump Administration seemingly didn’t care if there were thousands of people in squalid conditions in Border Patrol cells, as long as they could keep applying deterrents to as many people as possible, the Biden Administration has recognized that overcrowded border cells are unsafe and dangerous and something that they should be trying to stop. This is a really key difference between the two Administrations, and it has played out in many different ways. The Biden Administration is a lot more comfortable releasing people and allowing them to seek asylum inside the United States than the Trump Administration was.

That brings us to this child-labor story, which included officials talking about the need to release children more quickly, even without properly vetting the people to whom they’d be released. Can you talk about the different kinds of costs and benefits for both children and adults in terms of how long people should be in the system?

In my previous answer, I was mainly talking about releasing people and getting them out of Border Patrol processing centers. When a migrant arrives at the U.S.-Mexico border and is taken into custody by the Border Patrol or Customs and Border Protection, they go into a processing cell. Ten years ago, these were almost entirely concrete cells, just fundamentally awful places for any person to be. These were not designed for overnight stays, for example. There were no showers, no beds, nothing like that. Over the last decade, the Border Patrol has built a series of dedicated processing centers and soft-sided facilities that have made that process somewhat better—still not great, but somewhat better.

When we talk about overcrowding at the border, I’m specifically referring to the twenty-four to seventy-two hours after a person is taken into custody. The Biden Administration has really tried to make sure that most people are out of custody in that timeframe, which means released, directly sent to a shelter, or sent to ICE detention.

But on this broader question of unaccompanied children, the Times story is horrific. The idea that there are still children out there laboring in the United States in these really exploitative situations is terrible. The Biden Administration is right to say it’s going to crack down on this. But it’s also important to acknowledge why the Administration was trying to get kids out of Office of Refugee Resettlement shelters as quickly as possible. Some of this had to do with logistics.

In the spring of 2021, at the height of the arrival of unaccompanied children, the Office of Refugee Resettlement did not have enough beds for unaccompanied children, and that forced the United States to put up the Fort Bliss emergency intake shelter, in El Paso, Texas. It started using convention centers in various places to temporarily hold kids. And until they built up this capacity, children were being stuck in Border Patrol cells for days at a time, which was awful. And so the Biden Administration found itself stuck between a rock and a hard place. To some extent, this is how the Office of Refugee Resettlement, which deals with these children, has been handling this issue for years now. There are no perfect answers.

If you put all of your resources into making sure that every single sponsor is perfect—that there are no concerns and that every single “i” has been dotted and “t” has been crossed—then you are going to have children in these government-run shelters, away from their families, for potentially months at a time, even when there are people willing to take them. That is often family members, loving family members, good people who are not trying to exploit them. At that time, you’re going to have kids piling up in Border Patrol cells because there just aren’t beds to take them in these government shelters.

But, if you get kids out of the shelters too quickly, because you’re trying to clear kids from the border, then you’re going to be inadvertently releasing some kids to bad-faith sponsors who do take advantage of them. And it leads to the situation that the Times described. In early 2021—and I don’t know when that clip of Secretary Becerra came from—the big focus was on the fact that there were so many kids stuck in Border Patrol cells. The idea was that you needed to get them out of these shelters quickly. It was very much a situation where there were no right answers that solved all the issues.

You recently retweeted someone who made a point that I want you to expand on, if you agree with it. About the Times story, the tweet says, “I appreciate that this story calls out Becerra and HHS, but it makes it seem like keeping kids in custody longer is the answer when in reality this is happening bc of US border militarization.” How is U.S. border militarization partially responsible for this situation?