As the Biden White House considers reinstating a policy to detain migrant families who cross the southern border illegally, a group of Republican senators, including Utah Sen. Mike Lee, reintroduced a bill Wednesday that they say will protect vulnerable migrants, including children.

The legislation would also tighten requirements for asylum-seekers, potentially slowing the flow of migrants across the southern border, which is what some of the senators who sponsored the bill say they hope for.

Monthly apprehensions at the border are near record highs, according to data released by U.S. Customs and Border Protection. Almost 153,000 unaccompanied minors crossed the border in 2022, up almost 5,000 from the year before.

The Stopping Border Surges Act, which Lee also introduced last year, would allow children to be held with their parents for the duration of their detainment. Currently children cannot be held for more than 20 days, and when they are released the adults they came with are released as well, giving adults an incentive to bring children across the border with them, Lee said in a press release.

The sponsors of the bill also say it would close some loopholes that allow children to be trafficked across the border, by ensuring unaccompanied children receive a hearing within 14 days of their apprehension, requiring border patrol agents who speak to unaccompanied children to have training in interviewing child trafficking victims, and requiring the government to gather additional information about the adults who take these children into custody.

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The bill also tightens requirements for asylum-seekers, requiring them to apply in a “safe country” if they pass through it on their way to the United States, and firming up the definition of “credible fear.”

Immigration advocacy groups have raised concern about the bill, including its impact on migrant children.

“This legislation would allow immigration authorities to hold migrant families with children in detention for longer than 20 days, despite a scientific consensus that detaining children can be harmful to their well-being,” said Jennie Murray, president and CEO of the National Immigration Forum, in a statement to Deseret News. “It would also permit officials to enter into agreements with countries to rapidly return unaccompanied migrant children, usually within 48 hours, to their country of origin. This could result in more children from more countries being sent back to potentially dangerous and unsafe conditions.”

But in a Senate floor speech when he introduced the bill for the first time last year, Lee said current immigration policy puts children at risk, because it gives parents who are in search of a better life for their children an incentive to send them across the border.

“America is the land to which those seeking a better life look for relief,” he said.

Biden considering family detention policy

The introduction of the bill comes as the White House is also looking at ways to stop the flow of migrants at the border. Biden administration officials have met with advisers from the Department of Homeland Security to discuss border enforcement options, including family detention policies, according to a New York Times report.

“No decisions have been made as we prepare for the Title 42 Public Health Order to lift,” a department spokesman said in a statement. “The administration will continue to prioritize safe, orderly, and humane processing of migrants.” 

Title 42 is a public health measure adopted during the COVID-19 pandemic that allowed the federal government to send immigrants who crossed the southern border illegally back to Mexico to await a hearing, without first processing them. Critics say it limits the ability of migrants to apply for asylum.

However, news that the Biden administration is even considering reviving a policy he said he would end (a promise he followed through with in 2021) has angered Democrats and prompted experts to warn of the ineffectiveness of this kind of approach to border enforcement. 

A problematic approach

“This just doesn’t work on any level,” said Murray in a phone interview with the Deseret News, speaking about family detention. “It doesn’t work to deter. It doesn’t help with the root causes. It doesn’t allow us to be who we know that we are, and aspire to be according to our values.”

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While administration officials attempted to differentiate the proposed policy from that of former President Donald Trump, saying the administration would abide by a court decision limiting family detainment to up to 20 days, if Biden were to move forward with the policy it would continue a precedent set by three of his predecessors. 

“This is not new,” Murray said. “If Biden does move forward with this, there will be four administrations in a row that have attempted the same thing.”

The temporary detention of migrant families began under President George W. Bush and continued under President Barack Obama, Murray said. But the practice was intensified during the Trump administration, leading to longer detention times and the forced separation of families as part of the president’s “zero tolerance” agenda. 

What these attempts at handling illegal immigration miss, Murray says, is that they do not influence the factors causing people to come to America in the first place, and ignore alternatives to detention that have been shown to be successful in getting asylum-seekers to their court dates and are far less expensive.   

Title 42 expiring 

The Biden administration has taken a more aggressive stance on illegal immigration in recent months, announcing rules in January and February that aim to disincentivize border crossings by expanding legal pathways for immigrants from specific countries and penalizing asylum-seekers who do not follow certain procedures. 

These moves come as the administration prepares for a surge in border crossings expected to follow the expiration of Title 42.

Early last month, Biden’s Department of Justice announced that Title 42 would be terminated on May 11 with the end of the COVID-19 pandemic public health emergency. 

The end of Title 42 is expected to result in a large surge in border crossings as immigrants hope to claim asylum, or evade border patrol altogether. 

“When the Title 42 public health order is lifted, we anticipate migration levels will increase, as smugglers will seek to take advantage of and profit from vulnerable migrants,” said Alejandro Mayorkas, secretary of Homeland Security, in an April 2022 memorandum

Immigration policies in 2023

The Biden administration has responded to criticism over the surge of migrants over the southern border by releasing policies that include incentives and penalties.

January’s new immigration plan taps into the president’s power of humanitarian parole to allow 30,000 migrants per month from Venezuela, Nicaragua, Cuba and Haiti to enter the country and work legally for up to two years, on the condition that they prove they have a financial supporter in the U.S., pass a background check and apply from their home countries. 

This policy seems to have had an immediate effect, cutting illegal immigration from those countries by 76% over the month of January, bringing down the total number of encounters at the southern border by 38%, according to Border Patrol data.

The February policy, which has entered a 30-day public comment period, seeks to replace Title 42 by automatically refusing asylum to all who enter the country illegally. The rule would likely become active in May, expiring two years later. 

While Murray welcomes policies that expand legal pathways and incentivize crossing at official points of entry, she said she is wary of the administration’s changes to policy.

“It doesn’t lead us to be the country that we’re looking to be, that we aspire to be, which is one that welcomes newcomers and assists in times of global crisis,” she said.