Biden says he wants to ramp up expulsions of migrant families, but most are being allowed to stay

While President Biden has said all migrant families should be rapidly expelled from U.S. soil under a Trump-era public health order, the policy is currently being enforced inconsistently across the southern border, frustrating both immigrant advocates and government officials.

U.S. agents in south Texas are not expelling Central American families with children younger than seven years of age to Mexico, according to a senior Border Patrol official who requested anonymity during a call with reporters Friday. Some of the migrant families encountered in south Texas are being flown to other Border Patrol sectors, like El Paso, and sent to Mexico from there, the official confirmed. 

“We’re still leveraging Title 42 in other areas,” the Border Patrol official said, referring to the expulsions policy, which was first authorized by the Centers for Disease Control and Prevention (CDC) in March 2020.

Mr. Biden and Department of Homeland Security (DHS) officials have said that while they would like to expel most Central American families to Mexico under the Title 42 public health authority, Mexican authorities in the state of Tamaulipas, across from the Rio Grande Valley, are not accepting young children traveling with parents. 

On Thursday, for example, about 6,000 migrants entered U.S. custody along the southern border, including approximately 2,200 parents and children traveling as families, according to figures provided by Customs and Border Protection (CBP) after Friday’s call.

About 86% of the families CBP encountered Thursday were processed under U.S. immigration law and not expelled, CBP said. Most are being released into U.S. communities, tested for COVID-19 and allowed to live in the country while they continue their deportation proceedings, which can be halted if they are granted asylum.

In February, nearly 60% of the families taken into U.S. border custody were allowed to continue their immigration proceedings here, a drastic change from previous months, when most parents and children were expelled together.

DHS Secretary Alejandro Mayorkas and Mr. Biden have both said the U.S. is working with Mexican leaders to expand Mexico’s capacity to accept Central American families rejected by the U.S. 

“They should all be going back,” Mr. Biden said of migrant families during his press conference Thursday.

During a diplomatic trip to Mexico this week, a U.S. delegation discussed Mexico’s capacity to accept more migrant families and urged Central American governments to accept more deportation flights, Biden administration officials said. One U.S. official said the delegations discussed ensuring the U.S. is expelling migrants “at a rate that does not overwhelm” Mexican authorities.

While the Biden administration has signaled that it would like to ramp up expulsions of families, its ability to do so may soon face legal jeopardy. 

At the tail end of the Trump administration, the American Civil Liberties Union filed a lawsuit seeking to stop the government from expelling migrant families with children. The ACLU agreed to temporarily suspend its suit so it could negotiate with the Biden administration, but recent remarks by Mr. Biden and his deputies could disrupt the pause, which is set to expire next Friday.

Lee Gelernt, the lead ACLU lawyer in the case, praised the Biden administration for protecting unaccompanied children from the expulsions, but said families also should be allowed to seek U.S. refuge, noting some include babies and toddlers.

“It is troubling and surprising that the president would say they want to expel all families,” Gelernt, who successfully convinced a federal judge last November to bar the expulsion of unaccompanied children, told CBS News. “If we want a humane immigration policy, we can’t be sending those families back to danger without even a hearing.”

Erika Pinheiro, an attorney with the group Al Otro Lado, said the inconsistent enforcement of the Title 42 policy has “sown confusion” among desperate migrant families in northern Mexico, noting that some are undertaking a dangerous trek to cross into the U.S. in south Texas, because they believe they’ll have a better chance to seek asylum there.

Pinheiro urged the Biden administration to end the Trump-era expulsions, saying they violate U.S. refugee law and have created a backlog of asylum-seekers at America’s doorstep.

“Unfortunately, CBP is flying some families to be expelled hundreds of miles away in Tijuana or Juarez without notifying the network of nonprofits and civil society groups available to provide them with essential services upon arrival,” Pinheiro told CBS News.

The Biden administration has also continued to use Immigration and Customs Enforcement (ICE) flights to expel families and adults to Haiti, Ecuador, Mexico, Colombia and the Dominican Republic. Guerline Jozef, executive director of the Haitian Bridge Alliance, a group that assists Haitian asylum-seekers and tracks their deportations, condemned the expulsions, saying deportees could face danger in Haiti, which is currently beset by political turmoil.

Meanwhile, migrant children and families allowed to pursue asylum in the U.S. are facing overcrowding inside Border Patrol facilities, the senior Border Patrol official conceded Friday, calling the conditions “very concerning.”

On Friday morning, the U.S. was housing 12,500 unaccompanied children in shelters and emergency sites, and holding another 5,500 in Border Patrol facilities. The record number of arrivals of unaccompanied minors has strained the U.S. refugee office’s bed capacity for them, forcing the administration to identify at least nine emergency sites to house the thousands of children stranded in border detention facilities.

Most CBP holding facilities were not built to hold children and U.S. law generally requires the agency to transfer unaccompanied minors to the refugee office within three days. The senior Border Patrol official acknowledged that many children are being held past the legal limit, some for longer than a week.  

“Our facilities were not designed to hold children for more than a few hours,” the official said, later adding, “We’re not detention experts. We’ve never claimed to be. And to be honest, we don’t want to be.”

Migrant children held at one Border Patrol facility in south Texas recently reported taking turns sleeping on the floor due to overcrowding. Others told lawyers they had not seen the sun for nearly a week and showered once in as many as seven days. 

“We continue to try and ensure that the kids that we have in our custody are provided the showers, the meals, the outdoor recreational activities, but it is a bit of a challenge for us when you have as many unaccompanied children as we have within our care,” the Border Patrol official said Friday.

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