(CNN) — The Biden administration has moved swiftly to distance itself from Trump-era immigration policies, but at the US-Mexico border, a pandemic-related order put in place by former President Donald Trump remains in effect, allowing officials to continue to turn away thousands of migrants.
The reliance on the order that permitsofficials to swiftly expel migrants underscores the challenges facing the administration along the US southern border, where arrests of families and children continue to rise.
Biden officials say that the order, decried by immigrant advocates, gives the administration time to make changes to the US immigration system, while still managing the influx of migrants at the border amid an ongoing pandemic. The Biden Justice Department also recently defended it in court.
As a result, recent arrivals to the border continue to be kicked back to Mexico or their origin country just as they were under Trump. In January, more than 62,000 people who crossed the southwest border were expelled, a number that has been relatively consistent for the past several months, according to the latest figures from Customs and Border Protection.
While the majority of arrests have been single adults, the increase of children and families — who pose the greatest challenge because of their vulnerability — complicates efforts to immediately reverse Trump-era border policies. The influx of unaccompanied children and limited capacity at existingfacilities due to Covid-19, have already pushed the administration to open an overflow facility in Texas to accommodate kids who arrived at the US-Mexico border without a parent or relative.
“It’s bad and it’s getting worse,” a Homeland Security official said this week about the growing number of arrests at the US-Mexico border, particularly in south Texas.
The origins of the public health order came under scrutiny during the Trump administration. At the time, officials at the Centers for Disease Control and Prevention suspected political motivations behind the order, which, in effect, closed off the border to migrants, including children and asylum seekers.
Homeland Security Secretary Alejandro Mayorkas hastried to explain the Biden administration’s rationale for still relying on the authority, known as “Title 42,” despite deep skepticism behind it. In a call with immigrant advocates last week, Mayorkas argued the administration is using the public health order as a tool while it gets other policies in place and not because officials believe that the border should be sealed off to asylum seekers, according to a source with knowledge of the call.
In a statement to CNN, Matt Leas, a spokesperson for the Department of Homeland Security, put it bluntly: “[T]he border is not open, and people should not make the journey to reach it.”
Still, immigrant advocates are imploring the Biden administration to stop the practice of turning away migrants arriving at the US-Mexico border and to address those coming equally.
“The use of Title 42 as a justification for their ability to do good in the future is also them making the choice that these children and families are expendable in the meantime. In my opinion, that’s wrong,” said Alida Garcia, vice president of advocacy at FWD.us. “They need to find a way to walk and chew gum at the same time.”
White House press secretary Jen Psaki reiterated Tuesday that the administration needs more time to make the changes it wants. “There hasn’t been enough time to do enough to impact the circumstances on the ground,” she said.
The Biden administration has pledged to take a more humane approach than the Trump administration on the US-Mexico border and since January, it has taken steps to undo Trump’s policies. Notably, last week, the Biden administration began the gradual entry of migrants who had been subject to a Trump-era policy that required non-Mexican migrants to wait in Mexico until their immigration court date in the United States.
But coming into the new administration, officials recognized the need for the public health order. “The calculus coming in was that they finally accepted they couldn’t make big changes. They had to leave Title 42 intact,” said one source involved in discussions during the transition.
The future use of the public health order for children and families is up to federal courts.
The Biden administration’s clearest defense of the order came in the form of a court filing earlier this month in a lawsuit challenging subjecting families to the public health order. A lower court had blocked the use of the order nationwide for kids, but that ruling was stayed by a federal appeals court while the case proceeds.
“Given such public health risks, the CDC Director determined that it is imperative to prohibit entry and expel covered aliens as quickly as possible,” the court filing reads, arguing border facilities are not equipped to quarantine, isolate or enable social distancing among detainees.
“Plaintiffs call this a ‘backdoor immigration policy’ while ignoring the fact that countries across the world have implemented emergency measures to help curb the spread of COVID-19, including closing their borders and imposing severe travel restrictions,” it continues.
Psaki said the administration would not expel unaccompanied children.
Behind the scenes, Homeland Security officials are preparing for the possibility that they will have to return to admitting migrants, as the US has done in the past, though this time, taking into account Covid-19 precautions.
Customs and Border Protection is “constantly running through those scenarios” for the possibility that the policy could be reversed, an agency official told CNN. “Everything has been litigated, every court decision appealed, we operate as if the world is in a constant state of flux.”
The lack of space and inability to return some children to Mexico under the health order has prompted the Border Patrol to directly release some families from custody instead of being transferred to Immigration and Customs Enforcement custody, according to two US officials.
McAllen, Texas, requested thousands of Covid-19 tests from state officials last month after learning migrants were not being tested by CBP. The city received 6,000 tests, which are being administered by Catholic Charities. If migrants tests positive, the organization will help them quarantine in a local hotel. As of early February, no one had presented with a positive test, according to Catholic Charities.
CBP agents have been told to prepare to deploy as soon as this week to help with processing at the border as a result of the increasing number of families and children arriving at the border, according to another official. And earlier this month, CBP announced the opening of a soft-sided facility in Donna, Texas, to expand processing capacity.
The facility has been primarily used to temporarily house families and children that crossed the border alone, another agency official told CNN, who added that the facilities in the region are at capacity, given the Covid-19 restrictions on space. CBP facilities are generally not intended to hold people, especially children, for long periods of time.
Restrictions on non-essential travel across the US-Mexico border due to the coronavirus pandemic have also rolled over into the Biden administration and continue to be extended.
Immigration and Customs Enforcement, meanwhile, is planning to release some migrant families in detention to accommodate the arrival of migrants arrested at the US-Mexico border, according to two Homeland Security officials.
Migrants continue to arrive at the US-Mexico border in increasing numbers. In January, about 3,000 people were arrested per day on average along the southwest border, according to CBP’s latest statistics.
A concerning trend for officials is the growing number of unaccompanied children arrested at the US-Mexico border. On Sunday, for example, border officials encountered 400 unaccompanied migrant children at the border, an official said.
Unaccompanied children who unlawfully cross the border are taken into custody by Border Patrol and referred to the US Department of Health and Human Services.
This week, the first unaccompanied migrant children arrived at an influx facility in Carrizo Springs, Texas, that had been reactivated by the Office of Refugee Resettlement, a federal agency under HHS. The facility can accommodate around 700 children and be expanded if necessary. While in care, case managers work to place a child with a sponsor in the United States, like a parent or relative.
There are approximately 6,800 children in the agency’s care as of Feb. 18, 2021.
ORR has been asking its shelter network to take children directly from Border Patrol custody because of the demand, instead of after a quarantine period at a shelter near the border, which had been the protocol during the pandemic, a source familiar with the process told CNN.
“Suddenly you have to start placing kids,” the source said. “Shelters are already required to have quarantine spaces but not for the number of kids it’s being needed for.”
The limited shelter capacity, as a result of Covid-19 precautions, is exacerbating the issues posed by an increase of migrant children at the US border. “They’re contacting their providers non stop asking how quickly they can bring on more capacity,” the source said.