President Biden’s Border Patrol is on pace to arrest and incarcerate more children this year than the agency has in any year in its entire history. The arrest and detention policy—not that people are seeking safety here—is the “border crisis.” In at least one way, Biden seems to agree because he is criticizing his own department heads for failing to get unaccompanied children out of those jails fast enough. Yet at the same time, he is banning unaccompanied children and families from crossing the border legally at ports of entry, which would head off the whole problem.
In March 2021, the Border Patrol arrested 56,045 children and parents traveling with children (families) from the Central American countries of El Salvador, Honduras, and Guatemala, the Northern Triangle. Customs and Border Protection (CBP) admitted just 138 legally at ports of entry, 0.2 percent of all undocumented families and children crossing the border in the month from the Northern Triangle. Biden is blocking nearly 100 percent of all asylum seeking families and children from the Northern Triangle from entering legally, which is forcing ever greater numbers to cross illegally.
CBP has had a longstanding informal practice of blocking asylum seekers from trying to apply at ports of entry despite the law explicitly allowing anyone who “arrives in the United States” to do so. The goal is to deter requests. In the middle of 2016, as more asylum seekers tried to use this method, the Obama administration introduced a formal policy of “metering” or capping the number of asylum applicants because it wanted to detain them all and claimed it lacked capacity to do so. Then, in 2018, the Trump administration intentionally lowered the caps to prevent asylum‐seeking “caravans” from applying for asylum there.
As a result of these policies, at no time in the last five years has a majority of asylum‐seeking families and children from the Northern Triangle crossed at legal ports of entry, but in many months before the Trump administration’s metering restrictions in 2018, the share crossing at ports reached a quarter of all crossers (Figure 1). Overall, in calendar years 2016 and 2017, nearly one in five—or 18 percent—of all Central American families and children crossing the border entered legally at ports of entry. This share fell to 12 percent in 2018 and then 2 percent in 2019 and 2020. In 2021, Biden has let in just 0.3 percent of all Central American children and families.
The legal basis for the current restrictions is supposedly a March 2020 Centers for Disease Control (CDC) finding under Title 42 of the U.S. Code that anyone “who would otherwise be introduced into a congregate setting in a land Port of Entry (POE)” posed a public health risk. The order was made indefinite in October 2020. The order was made over the objections of CDC health experts after the Trump White House ordered the CDC to issue it.
Yet even this order allows that certain individuals to be “with approval from a supervisor, should be excepted based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.” Obviously, admitting children and families to avoid having them cross illegally and wind up in border jails should qualify under multiple exceptions listed. Moreover, if CBP chose not to detain children and families in “congregate settings” at ports, they would also be exempt, but it has not chosen to do so. If they cross illegally, the children and families will be held in those exact settings anyway. In fact, those facilities are massively overcapacity, while the ports of entry holding cells are basically empty.
The Biden administration already did exempt unaccompanied children from Title 42 on January 30, so they should be legally entitled to apply for asylum at ports of entry, but CBP is not doing this. CBP is telling U.S. lawyers with unaccompanied child clients in Mexico that it will accept them at ports of entry, which explains the 46(!) who made it across in March. Lawyers believe that in practice, CBP officers are generally only accepting unaccompanied children when an attorney intervenes, which explains why the 46 entries in March are only double the number who entered in September 2020 under Trump when unaccompanied children were subject to Title 42, and why it’s actually a lower percentage of the unaccompanied child crossers overall than under Trump (1.4 percent v. 0.3 percent). Apart from Title 42, there is a separate ban on “non‐essential” travel that Biden renewed until April 20, 2021, which unaccompanied children and asylum seekers are not specifically excluded under, but which gives CBP broad discretion to exclude anyone not specifically classified as “essential” in the order.
In any case, CBP cannot know whether a particular child is an unaccompanied child without interviewing them to see 1) whether they are under 18 and 2) whether the adults with whom they are traveling are their parents. But CBP is not conducting any interviews at crossing points. They are just standing at the border line and turning away everyone who comes to the ports without a visa or crossing card.
In March 2021, for example, the New Yorker reported on the case of three children—aged 3, 7, and 9—whose mother had died while in Mexico, and an attorney (Florence Chamberlin) worked to get them admitted at ports. Chamberlin said, “People cannot safely approach a port of entry. You can be stopped by Mexican authorities, or by criminals. And we didn’t want to have them blocked, turned back, or expelled.” It was only her intervention that managed to get them across.
To her point about Mexican authorities, the Washington Post reported in March that Mexico has “continued to act as an arm of U.S. immigration enforcement” and detailed cases of unaccompanied children being detained in front of the international bridges between Texas and Mexico. One 15‐year‐old girl described begging the agent, “Please, please let us pass,” only to be forced to migrant shelter. This effort directs flows away from ports and toward illegal crossing points, essentially pushing kids into the hands of human smugglers.
Because the Biden administration is still expelling many families, many expelled parents are also sending their children back north alone. But U.S.-Mexico blockade of the ports is preventing these children from being able just to cross legally and driving them into the hands of smugglers where they face dangerous crossings, and it is causing the deaths of children. The children will then undergo arrests, incarceration by Border Patrol, and extended separation from family.
Rather than telling Mexican authorities to interdict migrants coming to the ports, the Biden administration should be telling them to direct them to apply at ports, encouraging a legal and orderly immigration flow. As I explain in Solutions for Migrant Children, ports should process their cases expeditiously, grant them parole status, and admit them in the same manner that Cuban asylum seekers were processed prior to January 2017 under the Wet Foot, Dry Foot policy that Obama cancelled. This would greatly reduce and potentially end the illegal crossings, free up Border Patrol resources, and end the crisis of so many child arrests and detentions.