Christian Chavez/AP Photo
Migrants watch others stand next to the border wall in Ciudad Juarez, Mexico, December 21, 2022, on the other side of the border from El Paso, Texas.
Rumors that the Biden administration may reinstate the family detention policies that triggered such an uproar during his predecessor’s presidency had all the earmarks of a White House trial balloon, something tossed out to gauge whether it would generate a backlash. The answer was a resounding “yes.”
Condemnation from the Congressional Progressive, Asian Pacific American, and Hispanic Caucuses was expected. The chairs of those caucuses threw Homeland Security Secretary Alejandro Mayorkas’s words back at him when he said two years ago, “A detention center is not where a family belongs.”
But even outside of those circles, Democrats fumed, because they were once again blindsided by a possibly pending administration policy.
Just as with Biden’s reversal on legislation that would nullify the District of Columbia’s update to its criminal justice laws (he abruptly let it be known he wouldn’t veto it), members of Congress did not receive a heads-up on the potential return of family detention. Rep. Lou Correa (D-CA) confirmed on a press call on Tuesday that he had not talked to administration officials about the issue, and he was far from the only one in the dark. “The lack of communication on immigration-related policy decisions is an insult,” said Sen. Bob Menendez (D-NJ) to Axios. Secretary Mayorkas did brief Hispanic lawmakers, but only after the fact.
While the ferocity of the backlash may have popped the trial balloon, the White House has already instituted a go-it-alone, punitive approach to immigration. Last month, the administration proposed rules that would block migrants from seeking asylum in the U.S. if they traveled through a third country first. Biden previously terminated several “safe third country” agreements with Central American nations that President Trump initiated, but the proposal essentially brings them back. It also mirrors a Trump “transit ban” policy that was ruled illegal by a federal court.
Prior to that, Biden announced a program to admit 30,000 migrants per month from four Central and South American countries, while expelling to Mexico the same number of migrants from those countries under the pandemic-era Title 42 policy if they attempted to cross the border and not use the limited parole process. Title 42 will be phased out with the end of the COVID public-health emergency on May 11. The administration’s steps—including the potential return of family detention—are seen as preparatory to prevent a surge of border crossings.
Currently, asylum seekers are tracked through electronic monitoring and told to report to Immigration and Customs Enforcement. Facilities for any revamped detention don’t currently exist and lack funding, and legal settlements require a 20-day limit on such detentions, something the Trump administration tried and failed to extend. Given these obstacles, it’s likely that floating the idea of detention was an attempt to discourage asylum seekers once Title 42 ends.
“We’re talking about human beings at our border,” Correa said on the press call. “Human beings that are suffering in other lands. It’s time to recognize refugees for what they are.”
The administration appears to recognize refugees as a headline they can erase. All of its recent actions seem calculated to keep immigration stories off the front pages of conservative news sites and the chyrons on Fox News. The administration has mostly dispensed with the Obama-era idea that tightening border security will create space for comprehensive immigration reform. This is more of a rearguard action to disappear any trace of media coverage. Whether international law allows the rejection of asylum seekers is a decidedly secondary concern.
All of the administration’s recent actions seem calculated to keep immigration stories off the front pages of conservative news sites and the chyrons on Fox News.
But attempts to move stories about the supposed flood of presumably dangerous immigrants amounts to fighting a losing battle. Every time an election comes around, the conservative noise machine finds a migrant caravan to endlessly hype. No amount of punitive action at the border will satisfy an opposition that isn’t interested in the policy reality but only how it can be used politically.
Indeed, border apprehensions are falling off, as the new policies take effect. January and February saw about 130,000 detentions per month, down from an average of more than 200,000 in 2022 and more than 250,000 in December. This did not stop the GOP attacks, as anti-immigration groups questioned the numbers.
Another example of the limits of the administration’s strategy can be seen in the stunning New York Times feature by Hannah Dreier on the widespread use of immigrant child labor. The Department of Health and Human Services didn’t want scenes of government-run migrant shelters to leak out, so it made a priority of getting children out of their custody and into the hands of sponsors. That focus on speed over vetting led to the exploitation, with HHS ignoring signals that sponsors were profiting from placing child migrants in work situations.
Of course, this led to far worse headlines that eroded the administration’s moral authority without securing their narrow goal of managing the story. The White House had to scramble to implement new policies to strengthen oversight, but the damage was done. A “keep this off A1” strategy, aside from its humanitarian failings, often fails on its own terms.
If they opt to restart family detentions, it could get worse. Children arriving alone at the border are not expelled but put into custody briefly until a sponsor can be found. If entire families are detained, the parents may prefer to send their child off rather than walk into a detention facility. That would mean more unaccompanied minors, and more potential for child trafficking and other abuse.
Meanwhile, anyone with a passing familiarity with the Biden administration’s economic strategy knows that a restrictionist immigration policy is incompatible with the growth in domestic manufacturing and employment that Biden is seeking. There is now a serious shortage of construction workers for the expansion in manufacturing encouraged by Biden’s policies. One of the more obvious ways to handle that workforce shortage is through expanding immigration. But the ostrich-like approach of the White House makes that option politically impossible.
The administration’s defensive crouch, then, is leading to circumstances critics describe as inhumane, a weaker build-out of domestic manufacturing, and a periodic popping-up of scandals, without quieting a conservative brigade that will never stop criticizing a Democratic president’s immigration policies. Bad policy, bad politics, and an endless drift that alienates allies. It’s hard to see how this could get much worse.
