WASHINGTON — Hispanic Democrats in the Senate expressed optimism last month about the Biden administration’s direction on immigration and border policy, after what several described as a “constructive” and “productive” meeting with Homeland Security Secretary Alejandro Mayorkas at the Capitol.
The senators said they raised concerns about potential new asylum restrictions, but Sen. Alex Padilla, D-Calif., who chairs the Judiciary Committee’s immigration panel, said Mayorkas “clearly knows what he’s doing.”
Since then, however, the Department of Homeland Security has released a sprawling proposal that includes tougher asylum restrictions for migrants who cross through another country en route to the U.S.-Mexico border, and the agency reportedly has considered reviving the Trump administration’s practice of detaining migrant families.
The apparent moves to ramp up controversial immigration enforcement policies have rankled those congressional Democrats who have pushed President Joe Biden to adopt more humane immigration policies — especially since Biden blasted the previous administration’s policies during his campaign for the White House.
Democratic Sens. Bob Menendez of New Jersey, Catherine Cortez Masto of Nevada and Ben Ray Luján of New Mexico all separately said Tuesday that any plans to detain migrant families had not been discussed at the February meeting with Mayorkas.
“The lack of communication on immigration-related policy decisions is an insult,” Menendez said. “It would be like making civil rights legislative ideas and thoughts without checking with a congressional Black office. Not acceptable.”
Luján said he hopes the New York Times report that a family detention policy is under consideration is “not true” and lamented that it had not been raised last month.
“It was a time to have honest conversations with one another, and this is another one of those surprises, if it’s true, that was covered by the media,” Luján said of the meeting. “It’s concerning to me that there would not be more communication with House and Senate members, and this is another one of those examples.”
Padilla said on Twitter on Tuesday that “reinstating family detention would be a grave mistake.”
“Instead of relying on costly failed policies that traumatize migrants and cruelly encourage more families to separate, we must focus on building a safe and humane immigration system,” Padilla tweeted.
Congressional Hispanic Caucus members met virtually with Mayorkas on Tuesday evening, according to a CHC spokesperson. A congressional staffer with knowledge of the meeting said they discussed the family detention proposal.
Rep. Adriano Espaillat, D-N.Y., deputy chair of the CHC, said the meeting was “productive” but declined to further elaborate.
No decisions made
The proposed asylum restrictions and other reported efforts to deter migration are part of the Biden administration’s efforts to reduce the number of crossings at the U.S.-Mexico border, which have reached record levels in recent months.
At the same time, the Biden administration has started to prepare for the planned termination of pandemic-related asylum restrictions. The government plans to lift the COVID-19 public health emergency on May 11, a move it says will also end the Title 42 policy that has allowed border agents to expel migrants without considering their asylum claims since March 2020.
The administration released a proposed rule last month that would make it more difficult for migrants to qualify for asylum if they passed through another country on their way to the U.S. and did not first attempt to seek protection there.
DHS said the proposed policy is intended to respond to an expected increase in migration once the Title 42 policy is lifted, but it could also take effect earlier if needed.
That policy prompted critics to compare it to a prior policy, issued under the Trump administration and struck down in court, that made migrants ineligible for asylum if they had passed through another nation and not first sought protection there.
Blowback from Democrats and immigrant advocates increased after the New York Times reported Monday night that White House officials and immigration advisors had held meetings where they discussed reopening family detention centers, which were closed after Biden took office.
The Biden administration has resisted comparisons of its asylum proposal to the Trump-era rule, pointing to recently launched programs that allow certain migrants from Nicaragua, Haiti, Cuba and Venezuela to apply to come to the country legally. A DHS spokesperson said the asylum rule “will encourage use of expanded lawful pathways and allow access to asylum and other forms of humanitarian relief for those who need it.”
Addressing the New York Times report, the department spokesperson said that “no decisions have been made as we prepare for the Title 42 Public Health Order to lift” and that the administration “will continue to prioritize safe, orderly, and humane processing of migrants.”
Mayorkas said on CNN on Tuesday that he encourages the department to “put all options on the table — great, good, bad, terrible,” and “many will be left on the cutting room floor.”
Criticism on all sides
Democratic lawmakers on the House side also were quick to condemn reports that the Biden administration was considering reviving the practice of family detention. Several urged the administration not to revert back to Trump-era immigration policies.
Rep. Nanette Barragán, D-Calif., chair of the CHC, who has pushed for more consultation between Mayorkas and Hispanic Caucus members, said in a statement Tuesday that the report is “deeply concerning.”
“We should not return to the failed policies of the past where families are detained in substandard conditions with long-term damage to children,” Barragán said.
In a statement, Rep. Jesús “Chuy” García, D-Ill., accused the administration of “walking back its promises to our migrant community” and said it “is unacceptable that this administration would even consider going back to the Trump-era policies that caused so much harm and trauma to children and families.”
And while Democrats sharply rebuked the administration for considering more restrictions, the administration has yet to receive much praise, at least publicly, from congressional Republicans for the asylum rule.
Sen. Ted Cruz, R-Texas, told reporters on Tuesday that he did not even see the reported expansion of family detention as a step in the right direction. “At this point, the Biden administration is flailing around, suggesting policies that we can anticipate they will administer in a halfhearted way at best,” Cruz said.
If the Biden administration “actually wanted to solve the problem,” Cruz said, they would resume border wall construction and reinstate a Trump-era program requiring migrants to wait in Mexico for decisions in their asylum cases.
But Sen. Thom Tillis, R-N.C., who was active in bipartisan immigration negotiations last session, praised both the asylum proposal and potential plans to reinstate family detention.
“I think it’s a good first step,” Tillis said about the asylum rule. “The question is enforcement and any sort of scope that gets applied to it.”
Sen. Chris Coons, D-Del., who participated in a bipartisan border trip earlier this year, called for the administration to be given “room” to develop its border policies.
“Circumstances at the border are exceptionally difficult,” Coons said. “I respect that the administration is studying a range of options in advance of the expiration of the public health emergency and Title 42, and I think we need to give them the room to find solutions.”
