The Biden administration is ramping up exceptions to a public health order that has largely shut the U.S.-Mexico border to migrant traffic since last year because of the pandemic.
More migrants are being granted humanitarian exceptions because they are considered the most vulnerable, including families with young children and transgender people who had been living in dangerous conditions in Mexican border towns.
This comes as the number of migrants apprehended at the southern border topped 170,000 in April for the second consecutive month. The majority are still being turned away, but an increasing number of single adults and families are being allowed into the U.S. to seek asylum.
"We are working to streamline a system for identifying and lawfully processing particularly vulnerable individuals who warrant humanitarian exceptions under the order," Homeland Security Department spokeswoman Sarah Peck said in a statement to NPR, referring to the health order aimed at stopping the spread of COVID-19.
"This humanitarian exception process involves close coordination with international and non-governmental organizations in Mexico and COVID-19 testing before those identified through this process are allowed to enter the country," Peck said.
But migration experts and aid groups say the Biden administration hasn't explained how the system works, creating widespread confusion in border communities about who is considered vulnerable.
"There's no clear set of criteria for which families are allowed in," said Jessica Bolter, an analyst at the Migration Policy Institute in Washington, D.C. "So it can really seem to migrants kind of like a game of chance."
The Biden administration has not sought to publicize this streamlined system of humanitarian exceptions to the health order. Instead, President Biden and top officials have repeatedly urged Central American migrants not to make the dangerous journey north because the border remains largely closed.
Immigrant advocates say administration officials are worried about touching off another surge of migration.
The number of migrants apprehended after crossing the southern border soared to a 20-year high in March, and rose slightly again in April, according to official numbers released Tuesday.
Nonprofits and immigrant advocates describe a patchwork of ways that asylum seekers are now being allowed into the U.S. — after being barred from entry for months under the pandemic health order from Centers for Disease Control and Prevention known as Title 42.
Under one arrangement, the Biden administration is working with a consortium of non-governmental organizations to identify the most vulnerable migrants so they can be allowed to enter the U.S., according to three people who are familiar with the process.
"It is an effort to streamline this kind of humanitarian exemption to provide more of a safe and orderly mechanism so that the U.S. government can process certain individuals who are displaced in Mexico and in vulnerable situations," said Raymundo Tamayo at the International Rescue Committee, one of the NGOs that make up the consortium.
That system began last week on a small scale in El Paso, Texas, and is expected to be rolled out across the Southern border. Migrants are screened in Mexico before they present themselves to U.S. Customs and Border Protection officials at ports of entry.
Ruben Garcia, executive director of Annunciation House, a nonprofit in El Paso, Texas, says he's heard that migrants are gaining entry by establishing they are vulnerable in Ciudad Juárez, Mexico, just across the border. His organization provides temporary shelter to migrants.
"What exactly is the criteria, who chooses them; that I can't tell you," Garcia said. "I just don't know."
Under these Title 42 exceptions, groups of up to 50 people are being allowed to cross from Juárez to El Paso almost daily, Garcia said. Most other migrants are still being expelled.
"Here in El Paso, Title 42 is still being enforced," Garcia said.
Nearly two-thirds of migrants crossing in families — about 32,500 people in April alone — and a growing percentage of single adults were allowed into the U.S. to pursue asylum claims last month.
Many are being allowed in because parts of Mexico are refusing to take back families with small children, administration officials said.
It's not known how many migrants were granted humanitarian exceptions in April. But the number of migrants allowed to cross after presenting themselves at ports of entry — rather than crossing illegally — more than doubled to nearly 1,800.
Transgender migrants also have been allowed recently to cross through ports of entry to be processed by U.S. immigration authorities and released to reunite with family or sponsors while their asylum cases move through immigration court.
A transgender migrant shelter in Juárez is expected to close this week. Alexa Ponce, 25, had been living there for more than a year after arriving from El Salvador just before the border pandemic restrictions took effect in March.
She's scheduled cross into the U.S. Wednesday with a group of seven other transgender women to request asylum.
"I feel an avalanche of emotions," said Ponce, who dreams of attending college. "I'm very happy, but I'm also nervous. I'm not sure how things will go for me. I want to work and have a more dignified life than I could in my country."
In San Diego, immigrant advocates report at least five migrant families are granted humanitarian exceptions each day. Al Otro Lado, Jewish Family Service and other non-governmental organizations have been petitioning CBP to allow them into the U.S.
These groups visit la migrant encampment just across the border in Tijuana, Mexico,as well as local shelters, to help identify especially vulnerable migrants.
They advise families who are deciding between waiting to be allowed to cross together at a port of entry and "self-separating" by sending their children across the border alone. The Biden administration already grants entry to most unaccompanied migrant children.
They also accompany families who are allowed to cross to the border. Last week, a case manager with the legal aid group Al Otro Lado, which is based in Tijuana, waited with several families at the port of entry, communicating with CBP agents there.
One of the families — Valeria and her two children — had been stuck in Tijuana since leaving Michoacán, Mexico, last year, fleeing domestic abuse. She asked that NPR not use her full name because she's still worried the violence will follow her.
"I feel safe right now, because I'm on the way to be with my family," she said, before she crossed the border. Her father and sister already live in the United States. "In Tijuana, there's fear, but we're on the way to safety."
The Biden administration has come under fire from Republicans, who blame a recent surge in the number of migrants arriving at the border on President Biden's decision to roll back some of his predecessor's hardline immigration policies.
But the White House is also under pressure from immigrants' rights groups, who say the administration should be doing more to allow vulnerable migrants to seek asylum.
They're calling on the administration to lift the Title 42 public health order, which was put in place last year under former President Trump, effectively closing the southern border to asylum seekers.
"A process to immediately help particularly vulnerable families is helpful, but it is not a substitute for completely ending the Trump administration's Title 42 policy," said Lee Gelernt, a lawyer at the American Civil Liberties Union, which has challenged the order as it applies to migrant families in court.
"The policy is unlawful and inhumane," Gelernt said.
The ACLU agreed to put its lawsuit on hold in February, and negotiated its own exception process with the Biden administration, according to Gelernt. Since late March, he said the ACLU has been referring up to 35 vulnerable families per day for entry into the U.S.
But the administration defends its use of the Trump-era public health order, and says it's up to the CDC to rescind it.
"We continue to expel single adults and families under Title 42," Homeland Security Secretary Alejandro Mayorkas in an interview with NPR's All Things Considered last week. "That is the province of the CDC to assess the public health needs of the situation with respect to the pandemic."
Mayorkas sought to downplay the scope of exceptions that the administration is granting.
"We do make exceptions for discrete humanitarian reasons to address particular vulnerabilities, and we have done so from the very outset," he told NPR.
"The border is not open," he said.
NOEL KING, HOST:
The Biden administration is expanding its efforts to allow vulnerable migrants into the U.S. April was the second month in a row that the number of migrants trying to cross the southern border surpassed 170,000. The number of people trying to enter the U.S. from Mexico is at a 20-year high. Most people are being turned away because of a public health order that the Trump administration put in place at the beginning of the COVID-19 pandemic. Here with me now to explain some of this are NPR's Joel Rose and Max Rivlin-Nadler, who's a reporter with KPBS in San Diego. Both of them cover immigration. Good morning, guys.
MAX RIVLIN-NADLER, BYLINE: Good morning.
JOEL ROSE, BYLINE: Hey, good morning.
KING: Joel, let me ask you about the big picture. What is going on at the border?
ROSE: Well, to answer that, it helps to start back at the beginning of the pandemic, when the Trump administration created this public health order that you mentioned that allows immigration authorities to quickly expel most migrants who are apprehended after crossing the border. And that has left thousands of migrants stuck in dangerous Mexican border towns, where they can become targets for kidnapping and other crimes. And as we know, thousands more migrants are arriving every month. The Biden administration has mostly left the public health order in place. But little by little, they have been opening the door to more of these migrants. Teenagers and kids arriving without their parents, for example, have been allowed in to pursue their asylum claims in the U.S. And now the administration is expanding that. We're hearing that transgender migrants are getting in and, increasingly, families with young children as well.
KING: How are they picking who gets in and who does not?
ROSE: Well, we don't really know that exactly.
ROSE: And that has caused a lot of confusion in border communities. One migration expert I talked to said it can seem to migrants like a game of chance. What we do know is that the administration is turning to aid groups for help, increasingly. The idea is that these groups screen the migrants who are tested for COVID-19 and then ushered into the U.S. at ports of entry. Right now, it's a patchwork. The ACLU has a program that is up and running. And there is a new partnership in the works known as the consortium, which includes groups like the International Rescue Committee and other NGOs. I talked to Raymundo Tamayo, who is the IRC's country director for Mexico.
RAYMUNDO TAMAYO: It is an effort to streamline this kind of humanitarian exemption to provide more of a safe and order mechanism so that the U.S. government can process certain individuals who are displaced in Mexico and in vulnerable situations.
ROSE: The hope is that this will lead to a system that is simpler and less chaotic and that that could help U.S. immigration authorities while, at the same time, helping migrants who desperately want to get to safety in the U.S.
KING: OK. Let's talk about a specific place. Max, you work along the border. You're based in San Diego. What are you seeing there?
RIVLIN-NADLER: Like elsewhere on the border, immigrant advocates here have been petitioning U.S. officials to allow the most vulnerable migrants into the U.S. These efforts have been going on for more than a year. But they're finding a more receptive audience with the Biden administration than they did under Trump. These groups have been going into migrant shelters and a migrant encampment in Tijuana to identify individuals and families that are in real danger there. When the advocates get the green light from U.S. officials, they then walk with them to the port of entry, where they're allowed to enter the United States. I met up with one of these groups last week.
KING: OK. So who'd you meet with? And what'd they tell you?
RIVLIN-NADLER: I spoke with Valeria. She was about to cross at the port of entry with her two children through this process. She was fleeing domestic abuse in Michoacan, Mexico, and asked that we not use her full name. Here's how she was feeling right before she entered the United States.
VALERIA: (Non-English language spoken).
RIVLIN-NADLER: She says she feels much more secure because she's going to see her family who already live in the U.S. And it's been so dangerous in Tijuana. As with other migrants, she'll stay in a hotel room in San Diego paid for by the state of California where they can get COVID tests. I should say, only a small number of migrants in Tijuana right now are being allowed into the U.S. That morning, I saw many at the port of entry who are not allowed in because they had not gone through this process.
KING: OK. And, Joel, of course, the Biden administration has been under tremendous pressure about the situation at the border. Regarding this particular expansion of who can come in, what is the administration saying?
ROSE: Well, the administration continues to say, you know, in general, that the border is not open. Remember, they have kept this Trump-era public health order in place for the majority of migrants. And they really don't want to encourage more migration. They have repeatedly urged Central Americans not to make the dangerous trek north through Mexico. But the White House is also under a lot of pressure from immigrant rights groups who say that the administration should be doing more to help these migrants who are seeking protection in the U.S. and to establish a more humane immigration system, which is what Biden promised during the campaign. So the administration is really trying to walk this tightrope. And the pressure is intense. The April border numbers just came out officially this week. And they show that immigration authorities apprehended more than 170,000 migrants at the border last month for the second month in a row, something that has not happened in 20 years.
KING: That's a long time. Also, this is happening at an interesting time - right? - because we have more people getting vaccinated. We have more places that are easing restrictions. Things are going back to, you know, quote-unquote, "normal." Do you think that this public health order that prevents people from coming in is going to continue holding?
ROSE: Yeah. It's a great question. Homeland security officials say that that is up to the Centers for Disease Control and Prevention. Immigrant advocates, though, say it is time for the public health order to end. They say this order was never really about public health. Really, it was about keeping out migrants in their view. And they point out that plenty of people still cross the border every day, including, you know, truckers hauling goods. And they point out that the Border Patrol and customs officers can get the coronavirus vaccines now if they want to.
These advocates say they're glad that more asylum-seekers are being allowed in through this sort of expanded process. But they say these exceptions will only help a few hundred vulnerable migrants a day. Their real end game is to convince the Biden administration to lift the public health order entirely. And, you know, they don't want this system that's emerging to become permanent, you know? And I should note that they do have some leverage here. The ACLU says that this public health order is illegal. They sued the Trump administration to stop applying it to migrant families. The ACLU put that case - agreed to put that case on hold earlier this year when the Biden administration came in. But they could decide to go back to court if they don't like how it's going.
KING: NPR's Joel Rose and Max Rivlin-Nadler of member station KPBS. Thank you both for your reporting. We appreciate it. Transcript provided by NPR, Copyright NPR.