Originally Published in The Hill
Rebecca Beitsch - April 22, 2021
The state of Texas, with assistance by former President Trump aide Stephen Miller, filed another suit challenging President Biden’s immigration policies on Thursday, turning to the courts to force the administration to expel all migrants using a law that allows swift deportation in the name of the coronavirus pandemic.
The Biden administration has been relying heavily on a Trump-era "Title 42" rule to quickly deport a majority of those who attempt to cross the southern border, but it has made exceptions for unaccompanied children and some families.
Texas’s suit argues that the administration’s “abandonment of their authority” under the law means “more Texans will be exposed to Covid-19, more Texans will contract Covid-19, more Texans will die of Covid-19 and Texas will incur significant costs in terms of health care and law enforcement resources.”
In March alone, the Biden administration used its Title 42 authorities to expel more than 100,000 of the 172,000 people who crossed the southwest border, many of them single adults. Another 68,000-plus were expelled under Title 8, which allows deportation of those who violated immigration law by entering the country between ports of entry.
Still, the Biden administration is dealing with record numbers of children in government custody along with pressure to ensure proper coronavirus protocols in both its facilities and for Department of Homeland Security (DHS) workers.
As of Wednesday, the government had more than 21,000 children in custody.
The suit, filed in U.S. District Court for the northern district of Texas, argues the Biden administration violated the Administrative Procedures Act, among other laws, and asks for an injunction to force DHS to “return all covered aliens to Mexico” or detain them for at least 14 days before release.
DHS did not respond to request for comment. But administration officials have repeatedly said they would not use Title 42 or any other law that would leave children stranded alone on the other side of the border.
“We have a number of unaccompanied minors, children who are coming into the country without their families. What we are not doing, what the last administration did was separate those kids, rip them from the arms of their parents at the border. We are not doing that,” White House press secretary Jen Psaki said in February.
“These kids, we have a couple of options. We can send them back home and do a dangerous journey back. We are not doing that, either. That is also putting them at risk. We can quickly transfer them from CBP to these HHS-run facilities,” she added, referring to U.S. Customs and Border Protection and the Department of Health and Human Services.
Critics called the Texas suit an attack on children, given that exceptions to Title 42 have largely gone to minors.
"There is no lower order than being one who spends his day finding ways to attack kids who are running for their lives," said Jorge Loweree, policy director at the American Immigration Council.
The suit is one of several from the Lone Star State, which has also challenged the Biden administration’s detainer policy allowing Immigration and Customs Enforcement officials to request local authorities to hold foreign national convicts for up to 48 hours after their jail sentences are scheduled to end. The state also sued President Biden for rescinding Trump’s “remain in Mexico” policy barring people from applying for asylum within the U.S.
Miller has been credited with crafting the Trump administration’s child separation policy.
The Biden administration has started a family reunification task force to return more than 500 children who remain separated from their parents.
DHS Secretary Alejandro Mayorkas said last month that families separated under the policy should be allowed to reunite and remain in the U.S. if they choose to do so.