When President Biden took office in January 2021, immigration advocates breathed a tentative sigh of relief. Biden’s campaign rhetoric signaled the possibility for a more compassionate approach. For migrant families, that promise has not come to bear. Instead, the Biden administration is recycling old Trump policies and introducing new ways to degrade asylum.
Unlike Trump, Biden has paused the use of family detention and is not systemically separating nuclear families at the border. However, immigration policy defines families very narrowly, here meaning only biological parents and their minor children. The detention and separation of families happens every day–spouses, adult children and parents, siblings, cousins, are sent to different detention centers and processed separately, resulting in unnecessary trauma and legal complications. Family members can receive disparate results, meaning some are deported quickly while others move forward with an asylum claim.
Family detention could reemerge at any moment. Department of Homeland Security Secretary Mayorkas said publicly in March that “all options are on the table,” including family detention. The administration has not taken any proactive steps to end family detention formally or protect the integrity of asylum-seeking families. Last month, House Republicans proposed a bill that would require the detention of migrant families. Trump stated, boldly and unapologetically, that he believes family separation should be reinstated to serve as a deterrence.
This administration must make lasting changes to prevent abuses by future administrations.
On May 11, Title 42 officially ended. Many want us to believe this has caused a crisis at the border, despite the fact that the U.S. has received asylum seekers for decades without Title 42 and the Biden administration had years to prepare for this transition properly. The administration is hiding behind the media frenzy to enact policies that cut asylum law at the knee, including the newly recycled asylum ban, improperly introducing arbitrary barriers to qualifying for asylum; conducting asylum screening interviews immediately after individuals enter the U.S. in Border Patrol custody, a program rife with access to counsel concerns; and FERM, the family expedited removal management program.
Continuing in the ugly legacy of family detention, FERM enters nuclear family units into expedited removal, places ankle monitors on heads of households, and imposes a strict curfew on migrant families. Parents must swiftly present for their initial asylum screening interviews. If families do not pass the interview, they will be quickly deported. For now, it will apply to families traveling to Washington D.C., Chicago, Newark, and Baltimore. While the initial asylum screening interviews, called credible fear interviews, are intended to rule out only frivolous claims, practitioners frequently see meritorious claims denied. The fast timelines of expedited removal make it extremely difficult for families to find legal representation. According to an American Immigration Council study, detained immigrants who had legal representation were twice as likely as their unrepresented counterparts to be granted immigration relief. Coupled with Biden’s asylum ban, logistical and legal hurdles are stacked against migrant families.
It should not be forgotten that these ankle monitors are produced by for-profit companies, much like immigration detention centers are contracted out to private prison companies like GEO Group and CoreCivic. GEO subsidiary company BI provides tracking devices and tracking services for the government. BI originally developed their technology to track cattle. Reports say their ankle monitors cause bruising, bleeding, electric shocks, and social isolation. The Biden administration is transforming family detention from a jail setting to an over bloated, for-profit surveillance scheme.
It is possible to process asylum seekers fairly. We saw this play out at the southern border with the prompt processing of Ukrainian refugees. Advocates noted a difference in the treatment of Ukrainians compared to others, predominantly Black and brown individuals. The federal government of the wealthiest nation in the Western Hemisphere has the economic resources to enact humane policies. The question is, do they have the will. Xenophobia, nationalism, racism, colorism, and profit margins are all at play here. These restrictive policies signal to ourselves and to the world that the American public is becoming increasingly small-minded, insular, and fearful. The administration is counting on the public’s apathy to the complexity of immigration policy.
It is the U.S.’s responsibility as a global leader to maintain the integrity of asylum, as codified in federal and international law. There is a moral duty to protect this process for families seeking safety.
Briana Perez is a supervising attorney for the RAICES Pre-Removal unit in San Antonio, Texas, which provides legal services to families and adults in the expedited removal process who are detained in south Texas.
