Biden Approach to Covid Border Restrictions Irks Both Parties

  • Public health law used to close border, citing Covid-19
  • Biden administration continues policy, with exceptions

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The Department of Homeland Security is relying on public health restrictions as it develops a new plan to address the immigration surge at the southern border, to the frustration of Democrats and Republicans alike.

Several Democrats on the Senate Homeland Security and Governmental Affairs Committee want the Biden administration to end the public health restrictions at the border, referred to as Title 42. The Trump administration used the law to close the border to migrants and asylum-seekers at the beginning of the pandemic. The Centers for Disease Control and Prevention called for the restriction.

The Biden administration has allowed exceptions to Title 42 to allow children and some asylum-seekers into the country, which Republicans said is causing a growing crisis at the border.

“Title 42 is the CDC’s public health authority,” Homeland Security Secretary Alejandro Mayorkas told Sen. James Lankford (R-Okla.) during a hearing Thursday. “It is not a tool of immigration. It is a tool of public health.” The CDC, not DHS, determines when to impose or lift Title 42.

Photo: Mandel Ngan/AFP/Bloomberg
Homeland Security Secretary Alejandro Mayorkas speaks during a Senate Homeland Security and Governmental Affairs Committee hearing on May 13, 2021.

Lawmakers of both parties pressed the DHS Secretary on what he was doing to address the surge of unaccompanied children into the U.S. More than 65,000 children encountered U.S. Border Patrol agentsalready this year—more than in all of 2020, and quickly approaching the more than 80,000 unaccompanied children in all of 2019, according to DHS data.

Mayorkas told lawmakers he couldn’t commit the administration to a timeline on lifting the public health restrictions, but assured lawmakers he was preparing a system to respond to immigration needs.

“We’re taking a look at the process, the system, and how we can re-engineer it for a better future. That re-engineering has well begun, and is underway, and will continue to be executed,” Mayorkas told Sen. Gary Peters (D-Mich.), the chairman of the Homeland panel.

Biden Open to Piecemeal Immigration Bills to Speed Passage

Man with a Plan?

The Biden administration ended the blanket use of Title 42, allowing unaccompanied children to enter the country and the asylum system. Numbers surged, with more than 5,700 children in U.S. Border Patrol custody as of late March, a record. More than 4,000 of those children had been there more than the maximum allowed 72 hours, Mayorkas said.

“We have a plan,” Mayorkas told lawmakers. “It will take time.”

DHS increased its resources and began handing children over to the Department of Health and Human Services to address their health and safety needs while trying to locate their parent or family sponsor. By May 11, the latest figures available, the number of children in Customs and Border Protection facilities was down to 455, and none were being held for more than 72 hours, Mayorkas testified.

Sen. Jacky Rosen (D-Nev.) pressed Mayorkas on when the administration would end Title 42. Allowing children to come without parents, the Biden administration was creating “a new source of family separation,” she said. Mayorkas had heard only anecdotally of “self-separation,” he told Rosen.

Title 42 ‘Worked’

The so-called “Remain in Mexico” policy—requiring those who entered the U.S. illegally to wait in Mexico for asylum proceedings—paired with Title 42 “really worked,” Sen. Ron Johnson (R-Wis.) told Mayorkas. “We pretty well stopped a robust surge of illegal immigration across the border.”

The Biden administration’s policy has led to a “skyrocketed level” of children arriving and being released into the country, and inspiring others to make a dangerous trek, Sen. Mitt Romney (R-Utah) said.

Mayorkas said the Trump administration’s policies didn’t work for the Biden administration, particularly when it came to unaccompanied children or family separation.

“They have a claim under the law for humanitarian relief, either their claim of asylum or their claim for special immigrant juvenile status. And we can, in fact, meet the challenge,” Mayorkas said.

To contact the reporter on this story: Shaun Courtney in Washington at

To contact the editors responsible for this story: Sarah Babbage at; Anna Yukhananov at

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