Biden administration weighs detaining migrant families, sparking Democratic blowback

As the Biden administration prepares for the possible end of the immigration restriction known as Title 42 -- which could lead to an increase of people attempting to cross the southern border -- sources say government officials are weighing whether to detain migrant families who illegally enter the country, a politically fraught move on an issue that invites near-constant scrutiny.

The deliberations about potentially detaining migrant families, which the Biden administration stopped doing in 2021, were confirmed by sources familiar with the matter.

One source, who declined to be named in order to discuss internal policy deliberations, stressed that no decisions have been made and the conversations about migrant family detention have been limited in scope and focused on the short period of time needed for swift processing.

The detentions, under U.S. Immigration and Customs Enforcement, would be limited to a small number of days, another source told ABC News -- unlike during the Trump administration, which tried to detain families indefinitely.

The sources also insisted that processing for those detained would comply with federal standards, including a 20-day cap on the amount of time they are held.

The administration has, more broadly, taken steps in recent months to speed up its processing of detained migrants.

But the possible return to detaining migrants families quickly ignited political blowback from key members of President Joe Biden's party.

"I'm alarmed by news reports that the Administration is considering reinstating family detention policies," Rep. Bennie Thompson, the top Democrat on the House Homeland Security Committee, said Tuesday. "If the reports are true, I strongly urge the Administration to reconsider this policy change and instead work towards implementing immigration policies that are humane, orderly, and in line with our American values."

Rep. Nanette Barragán, the chairwoman of the Congressional Hispanic Caucus, called reports that the Biden administration is considering detaining migrant families "deeply concerning."

"A just, safe, and humane immigration system should not place families in detention," Barragán said, in part, in a statement. "We should not return to the failed policies of the past where families are detained in substandard conditions with long term damage to children."

White House press secretary Karine Jean-Pierre on Tuesday declined to comment on the possibility that the administration could go back to detaining migrant families while not ruling it out either.

"I'm not saying it is being considered ... and I'm not saying it is not," Jean-Pierre said. "I'm saying that I'm not going to speak to rumors,"

When asked why Biden might consider detaining migrant families, given he stopped the policy shortly after taking office, Jean-Pierre again punted.

"He is going to use the tools that he has before him to make sure that we deal with an immigration system, where we build an immigration system that's again, safe, orderly and humane," she said.

The administration has continued to prepare for the end of the public health order known as Title 42, which restricts immigration during the COVID-19 pandemic.

A federal judge initially ruled the restriction had to lift by December, finding it "arbitrary and capricious," with minimal public health impact. But 19 largely Republican-led states appealed and the matter is now pending before the U.S. Supreme Court.

Department of Homeland Security spokesperson Luis Miranda reiterated in a statement this week that while "no decisions have been made" about family detention, "The Administration will continue to prioritize safe, orderly, and humane processing of migrants."

Republican state leaders like Texas Gov. Greg Abbott and GOP lawmakers in Washington have argued that the president's policies are "reckless" and expose the U.S. to too much harm from immigration -- including as a burden on government resources and via the flow of deadly narcotics.

Conservatives often cite record numbers of border crossings over the past year.

Recently the administration has taken steps to crack down on unauthorized migration while opening new, limited avenues for humanitarian relief for those fleeing violence and persecution.

Parole programs allowing Cuban, Haitian, Nicaraguan and Venezuelan migrants to apply for entry from abroad have been paired with new restrictions that allow authorities to return migrants from those countries back to Mexico.

The administration is also currently working to implement a new rule to bar entry for migrants who cross illegally, seeking asylum, without first seeking refuge elsewhere.

But the administration has been under fire from both Republicans, who have fought the humanitarian pathways in court, and from Democrats concerned about turning away migrants with legitimate claims.

Immigrant advocates said this week that the administration considering again detaining families along with some of the other recent proposals were an embrace of Trump-like policies and a reversal of campaign promises from Biden.

"Children should be released from ICE detention with their parents immediately. This is pretty simple, and I can't believe I have to say it: Families belong together," then-candidate Biden tweeted in 2020.

The American Civil Liberties Union, which has levied legal challenges against family detention by other administrations, said it will consider fighting any attempt by Biden to implement similar policies.

"If President Biden moves forward with these plans, he will be putting vulnerable, traumatized immigrant children at risk. We will fight him every step of the way," ACLU Executive Director Anthony Romero said.

The Immigration Hub's Executive Director Sergio Gonzales said family detention would not deter migrants rom seeking asylum in the U.S. and may also prompt people to separate out of fear that their children would be detained.

"There's no credible research that I have seen that has shown that when you jail families, it actually stops people from coming to our border," Gonzales told ABC News. "They're literally fleeing for their lives when they come to our border. They believe they have no other choice."

In 2018, Drs. Scott Allen and Pamela McPherson, two subject matter experts in medical and mental health who work with the DHS' Office for Civil Rights and Civil Liberties, raised alarm to DHS and Congress about the dangers family detention poses for children.

On Tuesday, the doctors sent a letter to President Biden and Homeland Security Secretary Alejandro Mayorkas warning the same.

"No amount of programming can ameliorate the harms created by the very act of confining children to detention centers," they wrote.