Originally Published in The New Republic
Felipe De La Hoz - May 12, 2021
Rather than shred Trump’s immigration restrictions, Biden is responding with his own regulations that may only make things worse.
Even as President Biden struggles to receive and safely accommodate thousands of unaccompanied minors—who are arriving in part due to Biden’s refusal to terminate a Trump order that is currently being used to quickly expel almost everyone except children entering alone—his administration is considering a raft of regulatory changes in response that, rather than undo the mistakes of his predecessor, may only further gum up the release of minors, have them unnecessarily placed in more restrictive settings, and brand them with gang and criminality designations that could be used against them in immigration court. Most of these new regulations were published in the Federal Register after Biden’s inauguration on January 20.
The proposals have flown almost completely under the radar for the same reason that so much of the immigration discourse is driven by emotion rather than the nuts and bolts of policy: The components of the “paper wall” are almost impossible to describe in a TV sound bite or succinctly explain to a casual observer. On the surface, these cogs in the regulatory structure seem quite bland and arcane: seven proposed sets of changes to forms and information collection related to migrant children in U.S. custody, published by the Department of Health and Human Services and with names like “Proposed Information Collection Activity; Mental Health Care Services for Unaccompanied Alien Children.” The potential problems only become apparent once you pry below the surface. For those who have, anxieties abound.
“There just doesn’t seem to be much thinking or stepping back, in relation to, like, ‘What are we actually doing? What is the rationale?’” said Azadeh Erfani, senior policy analyst at the National Immigrant Justice Center, which has opposed the proposals, referencing the Biden administration’s perceived lack of a new analysis of the actual objectives of what seem like holdover ideas, wedged into the pipeline long before it took office.
The primary concerns of advocates fall along three general tracks: that the information recorded in these forms will end up putting kids in more restrictive housing than they need to be in and prevent their release to foster families; that it will hamper the efforts of potential sponsors, such as family members, to take custody of them; and that there aren’t enough limitations on how the information can be shared—which means some of it will probably end up in the hands of law enforcement and U.S. Immigration and Customs Enforcement prosecutors, who will be able to use it against the children in court.
While such a designation can be made offhand and with tenuous evidence, its potential implications are massive. Supposed gang affiliation can easily tank what would otherwise be a successful asylum claim; this is a definite possibility given that HHS forms are not privileged and already find their way into immigration court settings with regularity. In comments submitted to HHS opposing the form changes, child welfare and social service organizations pointed to the case of Kevin Euceda, a Honduran asylum-seeker whose comments to an HHS therapist when he was 17, including that he had been forced to join a gang, became a major sticking point in his case, eventually leading him to accept deportation after about three years in detention. He died shortly after his return to Honduras, at age 20.
In Kevin’s case, he had actively volunteered information about his involvement in a gang, believing the conversations to be confidential. Under the proposed changes, staff would be actively prompted to fill in their assessments of criminal involvement, as well as information about children’s mental health, substance use, and other speculation that might affect not only their asylum cases but decisions about their custody and placement. Not all of the facilities in HHS’s nationwide network of private and nonprofit providers are the same. In addition to standard shelters, there are “staff secure” shelters with increased supervision and anti-escape measures, and “secure” shelters that resemble juvenile detention; among the reasons a minor might get put in one of these is suspicion of violent intent or gang affiliation.
“Teenagers sometimes act out. That can be construed through the lens of racial profiling oftentimes as gang-related activity,” said Erfani. “There’s no opportunity for people to really contest it. Sometimes it’s hearsay upon hearsay. It’s like what a child said about another child. And it’s really hard to prove a negative.”
Loose conjecture about the mental health or substance abuse record of minors in the system could also get them routed into unnecessary treatment programs. Foster families, which can take children in as the government looks for a long-term sponsor, may refuse to take custody of children who are believed to have behavioral issues or violent tendencies. As for sponsors, who are most often family members or friends, such allegations can complicate the release process. It also makes it more likely that appropriate sponsors will be hesitant to come forward. Such sponsors could face, among other things, more stringent evidentiary requirements for proving their financial stability and immigration status. While HHS doesn’t preclude those without immigration status from sponsoring a child, the agency already has to overcome significant mistrust after the Trump administration began arresting undocumented immigrants who came forward to sponsor a child in 2018 (the policy allowing this data to be shared with ICE was finally rescinded in March this year).
Advocates emphasize that they see the need for a thorough process to vet sponsors and ensure child safety. They also agree with some of the other changes that the Biden administration has proposed. However, these shifts, particularly the emphasis on unaccompanied minors’ potential criminal conduct or gang activity, seem misguided and uncomfortably enforcement-focused in a way that seems at odds with HHS’s mission. It’s also a puzzling time to introduce additional friction and delays in processing, as the administration has seen the volume of children in its care skyrocket to the point that it’s recently opened up several unlicensed emergency influx shelters.
The seven information collection proposals are now closed for comments, and it’s not clear how HHS will move forward. Federal agencies aren’t forced to respond to public concerns about these types of form changes, as they must in the instance of broader federal regulations. The government could change and republish the proposals, pull them from consideration, or enact them as written at any time. Already, on February 25, it rescinded a similar proposal that would have created additional burdens for sponsors, while leaving the other seven in place. Neither HHS’s Administration for Children and Families—the agency that oversees the unaccompanied child program—nor the White House responded to requests for comment.
Though the image of Trump immigration enforcement burned into most people’s minds is one of the physical implements of force—the chain-link enclosures, children running from tear gas, troops at the border—it was often obscure administrative changes like these that both gave the shows of force real teeth and did the heavy lifting of actually blocking legal pathways for people to enter and stay in the country. One absurd and notorious example was the U.S. Citizenship and Immigration Services’ so-called “no blanks” policy, which last year suddenly began treating certain forms as incomplete and rejecting them if they had any blank spaces, even where it didn’t make sense to fill anything in.
It was a minute change that you’d be hard-pressed to describe to a layperson without eliciting a shrug or some glazed eyes. Yet an untold number of would-be immigrants had their entire processes derailed because they failed to, for instance, fill out a current address for their deceased parents. The sheer volume and inscrutability of such regulatory shifts, administrative decisions, and policy guidance requires a prolonged and careful focus to fully reverse. This was the point. “We are seeing the administration start to roll back some of the worst of the Trump administration’s paper wall policies,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council. However, he says, “there are so many of them, and they have to go through an individual agency process each time in order to insulate themselves from any form of legal attack.”
The prospect of legal challenges isn’t theoretical, as anti-immigrant policy architect Miller has launched a legal group to challenge Biden policies in court, aided by friendly state attorneys general like Texas’s Ken Paxton, who has already sued the administration over several immigration shifts. “There’s a reason that you have to go through complicated processes no matter who’s in charge, precisely because you need to insulate the process from political whims. So it takes filling out ‘Form A’ and dotting every i and crossing every t in order to get the system back to a place where it is not actively anti-immigrant,” said Reichlin-Melnick.
Thus far, Biden has taken a number of largely symbolic stances and steps on immigration policy while leaving a lot of the Trump-era framework in place. On his first day in office, he got rid of Trump’s Muslim ban but left in place a much broader executive immigration restriction that effectively rendered the point moot, keeping it and another work visa ban in place until they expired at the end of March. Most notably, the administration has refused to budge on the Centers for Disease Control and Prevention’s Title 42 order, an unprecedentedly restrictive border policy very loosely tied to the coronavirus pandemic, which enables border officials to quickly expel migrants either to their countries of origin or back across the border to Mexico, where many face kidnapping and extortion.
Advocates do see forward momentum on certain challenges: The USCIS blank spaces policy was recently rescinded, as was a policy that forced staff to stop deferring to prior approvals when renewing visas. The administration has taken steps to block enforcement actions in courthouses and narrowed the priorities for arrest. Nevertheless, there are other areas where the decision-making seems to be in limbo, such as the immigration courts. Relatively few new asylum cases are being filed as a result of the expulsion policy, but those that are adjudicated are being hampered by a host of Trump anti-asylum policies that remain in place, including those imposed by the openly politicized Board of Immigration Appeals, as well as Trump administration attorneys general.
The uncertainty around the HHS proposals illustrates that there is a degree of inertia to the previous administration’s policies that Biden hasn’t tried to hit the brakes on, in part due to the lack of a Miller-like figure who could throw the same zeal into undoing Miller’s project as Miller did in building it. Without that effort, the administration risks shooting itself in the foot on key priorities, such as getting unaccompanied minors out of government custody, and ending up angering its allies in the process.