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Fewer migrant families being expelled at border under Title 42, but critics still push for its end

A migrant family’s descend into the Rio Grande as they prepare to cross into the U.S. from the Mexican side on March 29 in Ciudad Juárez, Mexico. The starkly urban border has seen some migrants cross but is mainly a deportation point for migrants that have been processed in McAllen and Brownsville to be returned to Mexico. (Michael Robinson Chavez/The Washington Post)

SAN ANTONIO — Rubi was watching a Spanish-language news broadcast about migrants at the southern U.S. border when an image of a little girl's masked face ringed by a fur-lined hood appeared on her phone screen. The eyes behind the mask belonged to her daughter.

She had not seen or heard from her then-9-year-old since February, when they lost each other at the Rio Grande while attempting to cross from Mexico into the United States after fleeing Honduras. Her husband had taken their two daughters to the Texas riverbank first and was returning to help Rubi, who was pregnant with their third child, cross when they were attacked.

Rubi was kidnapped by cartel members for not paying the fee charged for river crossings, while her daughters were taken by U.S. Border Patrol and placed in a shelter. The assault, estrangement and traumatic birth of the couple’s third daughter were all consequences, their attorney said, of the choice the family felt forced to make after being turned away for seeking asylum at a U.S. port of entry under Title 42.

The public health order — instituted by the Trump administration around the start of the pandemic and continued under President Biden — expels most migrants to Mexico and other countries and denied Rubi’s family a chance to make an asylum claim, they said. But their experience in Mexico and subsequent separation have made them one of thousands obtaining exceptions to the order after they were allowed into the country on humanitarian parole earlier this month.

U.S. Customs and Border Protection apprehension numbers for May released recently show the share of families — about 20 percent — being expelled under Title 42 continued to decline. Although the overall number of families reaching the Southwest border declined as well, the data shows that eight out of 10 families that Border Patrol encountered were released into the country and allowed to pursue immigration cases. Hundreds more are being allowed to enter the United States more frequently under humanitarian exceptions.

U.S. agents took Rubi and Jorge's 5- and 9-year-old daughters as the family fled Honduras and tried to cross the U.S.-Mexico border. Now, they're reunited. (Video: Families Belong Together)

Despite the Biden administration’s messaging telling migrants not to come to the United States and its refusal to set a termination date for Title 42, the order is being applied to fewer families with children. Of the 44,639 families apprehended in May, nearly 9,000 were expelled into Mexico while the majority were allowed to enter the country to pursue their immigration cases such as asylum.

More migrant families make it into the United States, but thousands still being expelled

Department of Homeland Security Secretary Alejandro Mayorkas, who inherited a legal battle with the ACLU — which is seeking to stop the family expulsions — has said the order is about public heath and not a “tool of immigration.” On Wednesday, a federal judge granted the administration yet another stay in the case, further delaying any decision on whether to lift the order.

The ACLU said more than 2,000 vulnerable migrants were admitted to the country in mid-May as part of negotiations with DHS to grant exceptions. Since then, about 35 families a day have come into the United States, including Rubi’s family.

Title 42 and other restrictions on border travel for legal immigrants have hampered the economies of communities on either side of the Rio Grande, said Rep. Henry Cuellar (D-Tex.). While Cuellar wants legal commerce and travel to resume, he said he is worried ending the order will increase the number of migrants attempting to cross illegally and overwhelm law enforcement, noting that CBP made more than 180,000 apprehensions last month — a record. The majority of those expelled were single adults.

“The men and women on the ground tell me it will create a perfect storm if you get rid of Title 42,” Cuellar said. “You get rid of border restrictions and then anybody can walk across the bridge and ask for asylum. You could have a rush of people.”

Biden has pledged to reverse many of the Trump’s administration’s hard-line immigration policies, and early on said he would not expel unaccompanied migrant children and teens taken into custody at the border. But the number of migrants at the border grew exponentially after Biden’s inauguration.

The administration had to ease restrictions after some Mexican states refused to take back families with young children because of shelter capacity constraints. An increasing number of families were either released or transported on lateral flights to other border regions from the Rio Grande Valley for expulsion.

Those flights, after withering criticism, were drawn down, but not before thousands of migrant families were expelled into Mexican border states already low on shelter space, in the throes of the pandemic and beset by cartel violence, according to Tom Cartwright of Witness at the Border, which tracks the flights.

Migrant teens and children have challenged three administrations, but Biden faces rush with no precedent

Cuellar, who based on conversations with administration officials estimated Title 42 — which was issued by the Centers for Disease Control and Prevention and has said it is under review — will be lifted by the end of June or early July, said the administration’s actions are undermining its messaging aimed at stopping or slowing the flow of migration.

“As long as people feel that there are no consequences, people are going to continue to come into the U.S.,” Cuellar said. “There has to be a better way.”

DHS said in a statement that the United States continues to expel families and single adults, but there are reasons some are not. That said, the statement read, the border is not open, restrictions remain in place and people “should not make the dangerous journey.”

“DHS’s ability to expel individuals under that authority can sometimes be limited by factors outside of our control,” the statement said. “In some cases, and for a variety of reasons, families and other individuals cannot be expelled. Those who are not able to be expelled are placed in immigration proceedings consistent with existing law.”

Pro-immigration advocates and critics of the order say that it has had the cumulative effect of separating families such as Rubi’s and coercing them into making difficult decisions. Some parents sent their children into the United States alone after they were unable to enter together. Migrant camps cropped up in the plazas of Mexican border cities as they waited to save enough money to pay smugglers to cross again.

Languishing in border communities on the Mexican side has allowed criminal organizations to take advantage of immigrants’ desperation and charge exorbitant rates to smuggle them deeper into the interior of the United States undetected.

“I do not like comparisons with zero tolerance, but forcing a parent to make the decision of whether to keep their child in danger or sending them alone is going to have brutal effects on the family and ultimately could result in the same type of months-long or permanent separation,” ACLU lawyer Lee Gelernt said.

Rubi and her husband, Jorge, whose last names are being withheld because they fear retribution, were forced apart from their two oldest daughters for more than three months.

The then-family of four left Honduras in October after shuttering their business because they could not afford to pay taxes to gangs. In an interview, Rubi, 27, said she knew about the restrictions on asylum seekers but moved forward anyway. She brought with her the death certificates of her murdered brothers, who were persecuted by criminal gangs, she said, to bolster their protection request.

Their disappointment at the Eagle Pass, Tex., port of entry in January motivated the family to swim across the swift currents of the Rio Grande a few days later from Piedras Negras, Mexico. Rubi’s two daughters, 9 and 5, made it. But as her husband came to help her, she was overtaken by attackers. He was beaten.

Cartel members held Rubi for ransom for days, she said, but no one in her family had money to pay her captors. She went into labor shortly after her release. The birth was difficult and the baby was born with birth defects and an intestinal inflammation.

The couple reunited at a Mexican hospital after Rubi went to local media for help to pay for her and the baby’s treatment. Jorge had been wandering around town trying to find his wife, asking strangers to look at the photograph he carried. At one point, he tried to hop a train headed north thinking she might have migrated, but he fell and injured his leg. The news report led him to his wife.

Immigrants are crossing the U.S. Mexico border in record numbers

Meanwhile, Mexican officials had told Rubi that without state insurance or money they would have to release her and the baby, according to her attorney, Mayra Rodriguez. The couple ended up on the streets.

The two spent weeks not knowing where their daughters were, while dealing with their infant’s illness.

“I asked for help anywhere I could to find information about my girls,” Rubi said.

A friend sent them a social media link to a post from a March 21 episode of Univision’s “Aquí y Ahora” news magazine show. The footage included images of their eldest daughter. The couple soon located their daughters at a Midwest shelter. They connected but had trouble finding a family member to take them in. Time was running out for the couple, who needed an arrangement before the girls became wards of the state.

Rodriguez, the attorney, learned about their case through a family friend. It took nearly two months but the attorney, working with the ACLU, secured humanitarian parole that allowed the family to be reunited. They had been separated 113 days.

On June 2, Rubi, carrying her baby girl, walked into a small Midwest airport terminal and embraced her daughters, tears falling down her cheeks as she stroked their pigtails and they caressed the baby sister they were meeting for the first time.

“It feels as though my heart has returned to my chest,” Rubi said. “What we endured in Mexico was horrible. We did not make this journey to experience the same kind of suffering all over again. I don’t want to remember or go back to where I came.”

Jorge came through the doors minutes later, pulling his children toward him and sobbing as he kissed each one. The family is staying with a friend in the Midwest.

Rubi has noticed little things about how the separation has affected her daughters. Their appetite has changed. They are reluctant to talk about some of the trauma.

“My oldest told me the other day, ‘Mom I want to be a lawyer. Do you know why?’ ” Rubi recalled. “’To defend all the kids who went through what I did.’”

The couple is applying for asylum and seeking work permits while their case is evaluated.

“They got lucky,” said Rodriguez, “but there are thousands of families who have not been.”

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