Why is the Biden administration still keeping migrant kids locked up? The saga of Title 42

Trump used an obscure public health regulation to keep migrant kids out. Biden promised to end that — he hasn't

Published August 13, 2021 6:00AM (EDT)

A Honduran mother carries her son, 4, across the U.S.-Mexico border as part of a group of at least 25 asylum seekers who where were allowed to travel from a migrant camp in Mexico into the United States on February 25, 2021 in Matamoros, Mexico (John Moore/Getty Images)
A Honduran mother carries her son, 4, across the U.S.-Mexico border as part of a group of at least 25 asylum seekers who where were allowed to travel from a migrant camp in Mexico into the United States on February 25, 2021 in Matamoros, Mexico (John Moore/Getty Images)

"A lot of girls cry. They have thoughts of cutting themselves," a 14-year old Guatemalan girl told a Reuters reporter in June. "I feel asphyxiated having so many people around me. There's no one here I can talk to about my case, or when I'm feeling sad. I just talk to God and cry," said another teenage girl from Honduras who was held in the Dallas convention center with 2,600 other kids.

It gets worse as you read more press reports written over the course of the summer. Kids in custody reported spoiled food, no clean clothes, sleeping on cots under glaring lights, drinking spoiled milk when there isn't water. According to a New York Times report, detained youth at a military base in El Paso said they'd gone days without showering, while at another facility in Erie, Pennsylvania, lice were rampant. In June roughly 4,000 unaccompanied children were being held by the Department of Health and Human Services. That's definitely a step up from the ICE detention of the Trump years, but still amounts to kids locked in facilities where press is not permitted.

No one denies that growing numbers of immigrants seeking asylum in the U.S. present a difficult political, social and humanitarian problem. The Biden administration realizes that, and has worked to alleviate the suffering. Still, there is no excuse for the incarceration of children. As Leecia Welch, a lawyer at the National Center for Youth Law, told the New York Times in June, "Thousands of traumatized children are lingering in massive detention sites on military bases or convention centers, many relegated to unsafe, unsanitary conditions."

There is growing outrage about the continuing use of the federal regulation known as Title 42 as a deportation mechanism. It was extensively used to keep migrants and refugees from entering the country under the Trump administration. President Biden promised to end it, but is now apparently allowing it to remain in effect indefinitely. 

In a recent letter to the White House, more than 100 advocacy and human rights groups urged the president to rescind Title 42 expulsions, charging that the practice violates both U.S. refugee law and international treaties, and endangers people seeking protection at the U.S.-Mexico border  According to Border Report in Texas, the expulsions have no scientific basis, and may expose those being held to violence in Mexico.  

Title 42 is one of 50 titles within the U.S. Code of Federal Regulations established in 1944 to move quarantine authority to the public health sector. It has sometimes been used to control immigration, using public health as a rationale. 

Well before the COVID pandemic, Stephen Miller, Trump's infamous immigration adviser suggested using the Code to close the border to asylum seekers, despite being told by lawyers that the administration lacked the legal authority to do so. Human Rights Watch has argued that "the expulsion policy is illegal and violates human rights," and adds that "U.S. law gives asylum seekers the right to seek asylum upon arrival in the United States, even if seekers arrive without inspection or prior authorization. U.S. Customs and Border Protection (CBP) is legally required to conduct screenings to ensure they do not expel people who need protection."

Yet since March 2020, CBP has carried out almost 643,000 expulsions using Title 42 without conducting the required screenings, thus creating a policy of illegal "turnbacks." In November a federal district court blocked the use of Title 42 in the case of unaccompanied minors, but by the time the Biden administration promised to end it more than 13,000 kids had been expelled.

Here's the rub. These kids aren't entering the U.S. infected with COVID, for the most part — they contract the virus once they are held in detention, because of overcrowding and unhygienic conditions in HHS and CBP facilities. Some children have died in detention.

Along with children, pregnant women — some of them in labor — have been expelled, as have a number of LGBTQ people, who are at high risk of violence, according to Human Rights Watch. This has continued under Biden. HRW also states: 

The Convention against Torture and the International Covenant on Civil and Political Rights (ICCPR), to which the U.S. is a party, prohibit expulsions or returns in circumstances where people would face a substantial risk of torture or exposure to other ill-treatment. Also, under U.S. law and the 1967 Protocol Relating to the Status of Refugees, to which the U.S. is party, the United States may not return asylum seekers to face threats to their lives or freedom without affording them an opportunity to apply for asylum and conducting a full and fair examination of that claim.

By February of this year, CBP had carried out more than 520,000 expulsions, according to the American Immigration Council.

Let's be clear: No one risks their lives or suffers the unimaginable hardships of migration without compelling reasons. Those may include crushing poverty, political violence, the threat of criminal extortion and murder, hopelessness and more. (If you want to know what the journey is really like, read "Disquiet" by Zulfu Livaneli, or "The Mediterranean Wall" by Louis-Philippe Dalembert.)

The UN holds that children seeking should never be detained. And still they come by the hundreds of thousands. That's why the ACLU is moving forward with a lawsuit that seeks to lift the public health order for migrant families and unaccompanied children. As Lee Gelernt, the ACLU's lead lawyer, has said, "Time is up" for dealing with this human rights catastrophe.

By Elayne Clift

Elayne Clift is a writer in Saxtons River, Vermont.

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