Biden’s reported move to detain migrant families marks latest rightward shift ahead of Title 42’s end

The Biden administration’s reported consideration of reinstating family detention for migrants at the southern border marks the latest shift to the center by the administration — which has as a result come under heavy fire from left-wing groups for its moves to secure the border.

Multiple outlets reported on Monday that the administration is considering reviving the detention of migrant families who cross the border illegally. Such a move would mark a significant reversal for the administration — which ended the practice in 2021 and instead released migrant family units into the U.S. interior with notices to appear in court or report to an Immigration and Customs Enforcement (ICE) office.

A Department of Homeland Security spokesperson said in a statement that “no decisions have been made as we prepare for the Title 42 Public Health Order to lift.”

The spokesperson was referring to the coming end to Title 42, a Trump-era order implemented at the beginning of the COVID-19 pandemic which allows for the rapid expulsion of migrants at the southern border for public health reasons.

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That order is ending on May 11 along with the ending of the COVID-19 public health emergency, and has renewed fresh concerns about a massive spike in migration when the expulsions end.  The administration said last year that it believed that migrant encounter numbers could reach up to 14,000 a day when the order lifts.

That would be on top of what have been historic numbers for the time of year, with 156,000 migrant encounters in January after the 251,000 in December — which marked a new record for any month.

But with the order finally ending, the administration has been taking stricter measures at the border. Alongside a humanitarian parole program that allows 30,000 migrants from Venezuela, Nicaragua, Cuba and Haiti in each month, the administration in January expanded Title 42 expulsions to include those nationalities. Those expulsions are expected to continue until Title 8 authorities after May. The administration noted that, despite the high numbers in January, they were significantly lower than December — which officials tied to the new measures.

Most controversially for the left, last month the administration rolled out a proposed rule that would automatically make illegal immigrants who crossed the border illegally and who have failed to claim asylum in a country through which they have traveled.

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That ineligibility presumption immediately drew comparisons to the Trump-era transit ban. The administration has repeatedly rejected that comparison — noting it is expanding legal asylum pathways, and is even expanding the use of a CBP One app to allow migrants to make appointments and upload pictures to make asylum claims at ports of entry.

“We are a nation of immigrants, and we are a nation of laws. We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners,” Homeland Security Secretary Alejandro Mayorkas said in a statement announcing the rule.

But that has drawn strong left-wing pushback, including from immigration activists and some top Democrats, who believe that the administration is chipping away at the right to asylum and is going back on its promises to move away from the Trump-era.

That anger only intensified with the reports on Monday evening that family detention is being resurrected later this year. Some left-wing Democrats immediately took aim at the administration.

“Locking immigrant families and children into cages along the border is dangerous, ineffective, and wrong,” Rep. Greg Casar, D-Texas, said. “The Biden Administration did the right thing by ending family detention. We can’t go back.”

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Sen. Alex Padilla, D-Calif., called the reports “deeply disturbing” and said it would be a “grave mistake” to reinstitute family detention.

“Instead of relying on costly failed policies that traumatize migrants and cruelly encourage more families to separate, we must focus on building a safe and humane immigration system.”

Meanwhile, the Biden administration is unlikely to see any support from Republicans on the issue. Conservative lawmakers have so far been muted on the asylum rule, taking a wait-and-see approach while attacking the expansion of the humanitarian parole program. Sen. John Cornyn, R-Texas, said the asylum rule’s success would be determined by the administration’s political will.

“The Biden administration has made some proposed rule changes, but the burden is on them to prove that they actually will work,” he said at the border last week. “And that they actually have the political will to defy some of their open borders base in order to fix that catch-and-release system that’s responsible for a lot of the asylum-seekers simply melting into the landscape, never to be heard from again.“

Republicans have blamed the administration for the crisis at the border, arguing that it was the sweeping rollback of Trump-era policies at the beginning of the administration that fueled the crisis in the first place.

The administration has pushed back against that criticism, instead calling for Republicans to back the White House’s funding requests for the border and to pass an immigration reform bill. Republicans have rejected that bill due to its inclusion of a pathway to citizenship for millions of illegal immigrants already in the U.S.