"This is BS"
New reporting suggests the administration never really understood (or, perhaps, preferred not to understand) how asylum works.
In the first months of the Biden administration, a sham political debate played out on the airwaves and the nation’s op-ed pages about the new president’s immigration policies. You may remember it: the “Biden border crisis,” anyone? The new administration was accused of adopting policies that invited increased levels of migration, and specifically of asylum claims from unaccompanied minors, who were in fact approaching and crossing the border in larger number at the time.
Now, fresh reporting from the New York Times reexamines those events. It confirms something advocates had long suspected: far from suffering from bleeding heart syndrome, the new administration was actually deeply ambivalent or even hostile toward asylum. To make sense of this reporting, let’s step into our time machine and set the dial back to February and March 2021, when the partisan fury was waxing hot about the supposed “crisis” at the border, with innumerable op-eds debating whether and to what extent these events were Biden’s fault.
The reason I say the whole debate at the time was a sham is not because it was entirely wrong on the facts. As I say, there was indeed an uptick in arrivals from unaccompanied children at the time. I wouldn’t even dispute the characterization of these events as a “crisis.” To be sure, people migrating to escape persecution or seek a better life is never a bad thing in itself—that’s not what made this a “crisis.” But any time large numbers of children arrive without adults—or are separated from their adult caregivers through government oversight or explicit policy—this creates a humanitarian crisis that can lead to prolonged stays in U.S. government custody, sometimes amounting in effect to detention.
The problem with the debate, rather, was that the terms in which it was framed was self-serving for both sides. Each party got to cast itself in its preferred self-image: the Republicans as hawks; the Democrats as doves. This ensured that no participant in the mainstream debate was open to the possibility that the true cause of the problem was the hawkish cruelty of both major parties. No one was asking, that is to say, whether Biden’s policies might indeed be responsible for the “crisis,” but not because they were too generous—as conservatives alleged—but rather because they were too restrictive.
Now, the policy change that prompted the uptick in arrivals from unaccompanied children is easy to spot. It was tied to the progress of litigation from groups challenging the Title 42 expulsion policy.
Initially, the Trump administration had used this Title 42 order—which amounts to a unilateral suspension of asylum access during the pandemic—to expel asylum-seekers wholesale—including even unaccompanied children. Advocates challenged the order as applied to unaccompanied minors, arguing that it violated not only U.S. asylum law (which our courts have been disgracefully slow to acknowledge or defend in recent years), but also more specific legal protections for unaccompanied children: including an anti-trafficking statute and a binding legal settlement known as the Flores Agreement.
Courts eventually blocked the Trump administration from expelling unaccompanied children, but left the rest of the Title 42 order undisturbed. The immediate effect was easy to foresee: large numbers of unaccompanied kids started crossing the border, precisely because they could not cross with their families. After all, the pandemic-era asylum shutdown was still in effect for intact family units and single adults. As a result, many families were stranded at the border in deplorable conditions. Once the order was lifted for only unaccompanied children, some families made the heartbreaking decision to send their children alone to seek asylum, since it was their only hope of reaching safety.
Ultimately, the order mandating access for unaccompanied children was stayed. But the Biden administration, to their credit, continued to respect it as a matter of policy. This meant that they refrained from expelling unaccompanied minors, even after the courts had theoretically restored permission for the government to do so.
To the administration’s great disgrace, however, they refused to halt the Title 42 order as applied to other categories of asylum-seekers, such as adults and families (and they have still not entirely rescinded it with respect to these groups to this day, more than two years later). The result of this was an inevitable crisis: more children arrived unaccompanied and entered the bureaucratic nightmare of US government custody, all for the simple and obvious reason that they did not have the option of arriving with their parents and other adult relatives.
All of this would seem to indicate, then, that Republicans and Fox News were right about a handful of things. They were 100% correct that Biden’s policies were causing a “crisis” of unaccompanied children ending up in US government custody. They were right, further, that this crisis was caused specifically by the administration’s partial application of the Title 42 order.
It’s just that Republicans’ preferred solution to this crisis was the utterly horrifying one of returning to the Trump-era policy of summarily expelling unaccompanied children to danger without any screening for trafficking or persecution risk (a policy that, during the brief window when the Trump administration applied it, arguably constituted kidnapping and enforced disappearance, inviting comparisons to that administration’s earlier “zero tolerance”/family separation policy).
To this appalling policy proposal, the Biden administration rightly fired back that they would never expel unaccompanied children: doing so was inhumane and almost certainly a violation of US anti-trafficking law (whatever the court’s stay in the pending litigation might have implied to the contrary).
I of course agree with the Biden administration to that extent. But you can see the problem: once these became the two poles of the mainstream political debate, as it subsequently played out in newspapers and on TV nationwide, there was no room left for anyone challenging the Title 42 policy as a whole. Liberals and Democrats largely confined themselves to defending the administration’s choice to exempt unaccompanied children from the policy, and this often meant in turn minimizing the reality of the crisis and downplaying the seriousness of the problem of thousands of kids getting stranded in US government custody with no adult caregivers. Republicans, meanwhile, certainly weren’t going to criticize Title 42—their beef with Biden was that he wasn’t applying the policy enough, not that he was applying the policy too stringently to parents and adults.
Framing the debate in these terms ensured there were precious few people arguing that Biden’s policies were in fact a problem—but for precisely the opposite of the reasons Republicans alleged. It wasn’t that Biden was being too generous and thereby inviting a flood of asylum-seekers. It’s that Biden was being too exclusionary and thereby effectively forcing many families to separate.
By the end of the news cycle, the only people pressing this argument were a handful of human rights advocates. I tried to join their number in a piece I published at the time in Roll Call that I’m not sure anyone read. The headline was: “Biden’s policies are causing a ‘crisis’ at the border—just not the way conservatives think.” But I was not the only one. The New York Times’s latest reporting—linked above—shows that advocates closer to the administration were also circulating concerns along these lines to the president’s inner circle. Yet their pleas on the subject met with bafflement and incomprehension—even hostility—from the senior administration officials charged with responding to them.
The Times obtained a memo circulated at the time, for instance, which aimed to summarize the main concerns of advocates in a series of bullet-points. Among these concerns were that “Title 42 is also family separation” and that “Title 42 is leading to family separation.” Both statements are true.
Title 42 led to a quite literal form of family separation, for instance, when it was applied to adult relatives traveling with children. Under longstanding US policy, children who cross the border with adult relatives who are not their formal legal guardians (such as aunts, uncles, grandparents, and older siblings) are separated from these relatives in custody in order to screen for trafficking risk. If these families can subsequently reunite, then the harm of this temporary separation is somewhat mitigated. Under Title 42, however, the adult relatives were frequently expelled, leading to perhaps a permanent separation. (See this Reuters article from the time documenting the phenomenon.)
Beyond this involuntary separation, however, Title 42 also led to a form of separation “by choice” (if a Sophie’s Choice can rightly be characterized as a genuine choice), because families living in dangerous conditions at the border in Mexico sometimes chose to send their children across the border alone—as discussed above—just so they would be out of harm’s way.
Advocates could have explained all of these concerns to administration officials, if the latter had been willing to listen. But Susan Rice’s handwritten comments on the draft—obtained by the Times—are all too revealing of how the administration chose to receive them. Rice underlined the assertion that “Title 42 is also family separation” and scrawled a “?!” of incredulity next to it. No doubt, she was thinking of the fact that the Biden administration had not restored Trump’s “zero tolerance” policy of separating parents from children—which is true. She did not pause to consider whether the administration might not nevertheless still be separating children from other adult relatives—or whether they might be forcing parents and children to separate in effect, by indirect means, which is what the advocates were trying to describe.
Next, Rice underlined the passage reiterating that “Title 42 is leading to family separation.” Here, she elaborated her views: “This is BS,” she wrote beneath it. “What is leading to ‘voluntary’ separation is our generosity to UCs [that is, unaccompanied children].”
This is a starkly revealing piece of marginalia. On the one hand, Republicans could point to it as evidence that Rice and the rest of the administration knew all the time that their partial exemption from Title 42 of unaccompanied kids was responsible for the crisis. On the other hand, it shows that the administration regarded their decision to exempt unaccompanied children as an act of “generosity,” rather than as compliance with U.S. asylum and anti-trafficking laws. The line strongly suggests, therefore, that the administration (or, at least, Rice) had little real intent to restore asylum for anyone other than unaccompanied kids. They regarded the whole matter as an issue of “generosity,” rather than a question of asylum-seekers’ rights under the law.
This is, of course, not how international refugee law—or the U.S. law of asylum that is based on it—is supposed to work. The UN Refugee Convention—to which the U.S. has signed on through a later protocol that incorporated it and extended its reach—says that the principle of non-refoulement—i.e., not returning people to a place where they are likely to experience persecution on a set of protected grounds—is universally binding on signatories. In other words, governments don’t get to pick and choose who is entitled to an asylum hearing and who is not. They can’t say: “unaccompanied children, yes; adults and children traveling with their parents, no.” If they have agreed to uphold the Refugee Convention, then they must allow territorial access to anyone with a fear of persecution, at least until they can make a fair determination as to the sincerity and reasonableness of the person’s fear.
From the moment they took office to the present, the Biden administration has refused to acknowledge the reality of this legal obligation—even though it’s plainly written into U.S. law and the international treaties our government has signed. The result of this failure has not only been thousands of people unlawfully expelled to danger; it has also ensured that thousands of children were forced to cross the border without parents or adult caregivers, because it was the only way for them to reach safety.
The Times’s reporting emphasizes one of several appalling consequences of this policy failure: many of the unaccompanied children who crossed the border under these conditions ended up working under exploitative conditions, frequently in violation of anti–child labor laws.
One can attribute this outcome to a failure of oversight during the sponsorship vetting process or to other administrative derelictions, but I think this critique buries the lede. If these children had not been unaccompanied, after all, then they would have had parents and adult caregivers traveling with them who could have provided for their needs, and who could have supported them while they went to school, instead of leaving them forced to enter the labor market in order to survive. Whatever other administrative failures there may have been, therefore, the fundamental problem is that children were barred from seeking asylum, so long as they did so alongside their parents—even though families and adults have every legal right to seek asylum under US and international law. It’s Title 42, then, that caused the crisis of unaccompanied child labor exploitation—just as it caused the crisis of unaccompaniment and separation in the first place.
These days, Title 42 may seem like almost a thing of the past. It is scheduled to come to an end with the expiration of the administration’s public health emergency declaration in May, and the Supreme Court has declined to take any action to affect this course of events one way or the other. The same right-wing media cesspool is already readying another round of “Biden border crisis” alarmism as soon as the order expires; and the administration in turn is openly seeking for other ways to restrict asylum access, once it can no longer rely on Title 42 authority (such as by promulgating a new rule that would eviscerate many asylum protections as we know them).
Whatever happens next, though, we know that so long as the administration keeps trying to bar intact families from seeking asylum together, more children and parents will be forced apart. The results—heartbreak, misery, and even the labor exploitation and trafficking of minors—are all too easy to foresee. We don’t need to speculate. We already have the evidence of innumerable needlessly damaged lives before us.