The Biden administration is not allowing U.S. Customs and Border Protection to return unaccompanied children at the southern border to Mexico despite a court order that allowed it, two people with knowledge of the situation told the Washington Examiner.
The Department of Homeland Security “made a policy decision not to,” one of the people said.
On Jan. 29, just over a week into the Biden administration, a three-member panel of circuit court judges in Washington, D.C., halted a lower court decision that had blocked children from being removed, a practice that had been taking place since March 2020. Despite the panel’s decision in favor of CBP, the Department of Homeland Security told immigration and border agencies that they would not be permitted to continue turning back children to Mexico and other countries of origin. Approximately 300 unaccompanied minors have been encountered at the border daily in recent weeks.
The decision, according to both individuals, was made at the top of DHS, though both avoided naming Secretary Alejandro Mayorkas. While it is within the secretary’s legal authority to drop policies that were implemented by the Trump administration, the decision was never publicly disclosed.
At the onset of the coronavirus pandemic in the United States last March, CBP announced it would immediately expel to Mexico anyone caught illegally crossing the southern border, instead of taking those people into custody. The move was meant to keep Border Patrol stations free from holding people in closed quarters during the coronavirus pandemic. The American Civil Liberties Union sued on the basis that children who showed up without a parent or guardian should not be removed from the U.S. without due process.
U.S. District Judge Emmet Sullivan for the District of Columbia ruled in November that the Trump administration could no longer immediately expel children. The ACLU estimated that 13,000 children had been pushed back south of the border between March and November 2020 after being transferred to Immigration and Customs Enforcement, which opted to hold children in hotels for weeks to avoid introducing them into government facilities before then expelling them. The Trump administration appealed the decision and won in January.
Under normal circumstances, children without parents are taken into Border Patrol custody and transferred within 72 hours to the Department of Health and Human Services Office of Refugee Resettlement-run childcare facilities. DHS and HHS have prepared tents in two places in Texas to detain families and children, respectively.
DHS and CBP did not immediately respond to requests for comment.
