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Biden Officials Are Considering A Process To Allow Some “Vulnerable” Immigrants To Avoid Trump-Era Border Restrictions

The plan, which has not been finalized, would create a system to potentially grow what’s already been happening on the southern border: immigrants receiving exceptions to the turn-back policy.

Posted on April 29, 2021, at 5:56 p.m. ET

Eli Hartman / AP

Immigrants at the southern border of the United States wait to be processed after entering the site of a temporary holding facility on March 14, 2021, near Midland, Texas.

The Biden administration is considering a process that would allow some immigrants to receive humanitarian exceptions to enter the US despite a controversial Trump-era border policy that has led to many asylum-seekers at the southern border being turned away, according to documents obtained by BuzzFeed News.

The plan, which has not been finalized, would create a system to potentially grow what’s already been happening on the southern border: immigrants receiving exceptions to the turn-back policy. The plan comes amid a chorus of criticism levied toward President Joe Biden for continuing a policy that has led to tens of thousands of immigrants being expelled at the southern border, including those who fled their home countries and are seeking protection.

Despite the considerations, Department of Homeland Security officials are expected to still turn around the vast majority of immigrants at the border.

Since March 2020, border officials have used a section of the public health code known as Title 42 to immediately turn back immigrants at the border in order to halt the spread of the coronavirus. Previously, immigrants had had the opportunity to claim fear of being returned to their home countries, something that’s unavailable when deported under Title 42.

In recent weeks, however, Department of Homeland Security officials began drafting a plan to allow those in especially vulnerable situations to have the chance at a humanitarian exception to the policy, according to documents obtained by BuzzFeed News.

The plan would have organizations in Mexico identify people who would likely gain an exception to the policy due to their vulnerability and get their biographical and biometric data to US Customs and Border Protection officials. This would allow for a more efficient process to screen and allow entry to certain immigrants who are tested for COVID-19, according to the documents. People who show up to ports of entry would not be able to enter this process.

An informal practice for immigrants to get out of the policy already exists.

Lee Gelernt, an ACLU attorney suing the government over the policy, said that the ACLU has been able to send 35 cases a day to the government for entry into the US on humanitarian grounds.

“We are hoping to see a more formal, expanded program ramp up quickly. Any formal NGO process, to be meaningful, will need to allow a significant number of people in each day at multiple ports,” he said.

A spokesperson for DHS told BuzzFeed News that the border "is not open," and that the government continues to expel "individuals and families under the CDC’s Title 42 public health authority."

"DHS is continually working, in consultation with the CDC, to improve the process for humanitarian exception requests under Title 42 as part of our efforts to restore safe, humane, and orderly processing at our borders," the spokesperson said.

The turnbacks, known as expulsions, are legally different from deportations, which would mean an immigrant had actually undergone the immigration process and was found to not be legally allowed to stay in the US. Critics say the government is using the public health orders as an excuse to turn back immigrants at the border.

The group Human Rights First reported last week that it had tracked "at least" 492 attacks suffered by “those turned away or stranded in Mexico since President Biden took office in January 2021.” In the report, the group said that the continued use of the policy was wreaking havoc.

“The policy also creates disorder and pushes asylum seekers to cross into the United States between ports of entry,” the report states. “Rather than protecting public health, the expulsion policy threatens the health and safety of asylum seekers and migrants.”

The Biden administration, which has warned that it will take time to undo Trump’s immigration restrictions, has already directed a review of the policy to determine whether it's necessary. Border officials have noted that the policy has driven many to repeatedly attempt to cross the border without authorization.

The administration has not used the sweeping public health powers to expel unaccompanied immigrant children at the southern border despite a federal appeals court clearing the path to do so. Since then, US officials have struggled to keep up with the numbers of unaccompanied children arriving at the border as they attempt to discharge the children from Border Patrol centers to shelters and facilities run by the Health and Human Services Department.

While unaccompanied children have been the exception to the turn-backs, starting in February, the number of families crossing the border and being allowed to stay in the US increased after Mexican officials passed a law prohibiting undocumented immigrant children from being held in detention centers.

The Trump administration justified the Title 42 policy as an effort to not only safeguard Border Patrol agents from COVID-19 but US communities as well. Since then, the policy has faced legal challenges, including one that blocked its use against unaccompanied children for several months.

A separate lawsuit, also filed by the ACLU, challenges the use of the policy against families. The organization represents six families who fled their countries and were seeking safety in the US. Prior to the policy, the group contends, the families would have had a chance at seeking asylum at the border. Instead, under the Title 42 policy, immigrants and families at the border must “affirmatively” state they are fearful of being tortured in their home country in order to get the chance at a screening for protections.

“Specifically, the Trump Administration contended that public health provisions in Title 42 of the U.S. Code — provisions that have rarely been used and never in this way — allow it to set aside the immigration laws,” the group said in a federal court filing earlier this year. “Title 42 authorizes various powers, such as testing and quarantines, but has never been interpreted to authorize the broad powers the government is claiming here. Not only does the Title 42 Process violate the immigration statutes, it is also patently arbitrary and capricious from a public health standpoint.”

The case, which is being heard by the same judge who blocked the use of the policy against children, has been in a holding pattern in recent weeks as both the government and the ACLU have discussed a potential resolution. The judge has held off any decision until sometime in May.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.

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