Understanding the Brouhaha Over Biden's Use of a Facility to House Unaccompanied Minors

While a Trump-era order to expel anyone crossing the border remains largely in effect, the new administration has allowed such minors to enter the country.

News out of Texas this week that the Biden administration has reopened a Trump-era migrant facility to house unaccompanied minors illegally crossing the southern border has prompted complaints of hypocrisy from the right and criticism from progressives who view the move as a major misstep from the Biden administration.

The Biden administration insists that what is happening on the southern border is not at all like what happened during the Trump administration. At her daily press conference on Tuesday, White House Press Secretary Jen Psaki made this distinction: “We have a number of unaccompanied minors—children—who are coming into the country without their families. What we are not doing—what the last administration did was separate those kids, rip them from the arms of their parents at the border.”

In 2018, the Trump administration instituted a “zero-tolerance policy” that purposefully separated children from parents when they were caught crossing the border illegally, citing a wish to deter families from doing so. In a January 2019 study, HHS found that at least 2,737 children were separated from their parents. However, because of a lack of data and other complexities, that number may be much higher. Instead of deterrence, though, what resulted was a massive public outcry and, ultimately, a withdrawal of the policy from the Trump administration in June 2018.

That was the policy Psaki was referencing in her comments, and the Biden administration has not reinstituted it. Currently, the new administration is dealing with an influx of new undocumented immigrants while also trying to keep the detained population low amid the coronavirus pandemic. Since taking office, Biden has reversed some of Trump’s restrictive immigration orders, including lifting a freeze on issuing green cards, revoking the travel ban on several Muslim-majority countries, throwing his full support behind the DACA program and more. Perhaps most important: While Biden has largely kept in place a Trump-era expulsion order for anyone crossing the border, he has made an exemption for unaccompanied minors.

Elizabeth Neumann, former deputy chief of staff for Secretary of Homeland Security John Kelly and current senior advisor to the National Immigration Forum, told The Dispatch the policy went beyond just being a deterrent. “The Trump effort of deterrence, as particularly led by Stephen Miller, was about cruelty,” she said. “Cruelty was the deterrence. Cruelty was the point. It wasn’t about ‘enforcing the law.’” 

The facility, in Carrizo Springs, Texas, was built and opened under the Trump administration, which used it only for about a month in 2019. A press release from the Administration for Children and Families described the conditions of the “Influx Care Facility,” which is run by the Department of Health and Human Services rather than the Border Patrol. It is equipped with beds, a meal schedule, health care and other resources for unaccompanied minors to access 24/7. 

It will be used to combat overcrowding at the current facilities that hold unaccompanied minors when they cross the border. Axios reported that there were more than 700 children in Border Patrol custody as of Sunday. More than 200 had been in custody for longer than 48 hours, and nine for longer than the legal limit of 72 hours. 

Sarah Pierce of the Migration Policy Institute told The Dispatch that, when an unaccompanied minor crosses the border, agents follow a protocol that ultimately leads to finding the minor a sponsor to live with via the Office of Refugee Resettlement (ORR). Meanwhile, the minor goes through standard immigration court proceedings.

Connecting minors with a sponsor through the ORR is challenging these days for a couple of reasons, Pierce says. “They’re overwhelmed not only because of the rise in numbers, but because they’re trying to keep the number of people in their facilities low” because of COVID-19.

Neumann argues that the Biden administration currently has no choice but to reopen some of these migrant facilities: “Of course nobody wants to be housing children in camps, but what else do you want them to do, just sleep outside?” Neumann and other experts told The Dispatch that in order to solve this problem, serious immigration reform is required to address why these minors are coming to the U.S. in the first place.

“In this instance, Biden is facing a problem of his own creation,” said Mark Krikorian, executive director of the Center for Immigration Studies, which advocates for less immigration into the United States. He pointed to the new administration’s decision not to apply a Trump-era public health order—which allows Border Patrol to turn away anyone who shows up at the border—to unaccompanied minors.

“So, guess what? There are a lot more unaccompanied minors,” Krikorian said. “The real issue here is that the promises Biden has made on immigration are going to lead to problems like this at the border. … I don’t know if there’s any way they can avoid it. They have backed themselves into a kind of corner.”

Overall, former DHS official Elizabeth Neumann says the confusion stems from another instance of the two sides playing politics. “The shock and the outrage either tells me you don’t actually know the problem set, or you’re playing politics with it.”