A slew of Republican governors have refused the Biden administration’s requests to send unaccompanied children from the border to their states, but legal experts say they are likely powerless to stop it.
Nebraska Gov. Pete Ricketts said he rejected the Biden administration’s request to “take these children,” while Gov. Kristi Noem declared in a tweet that “South Dakota won’t be taking any illegal immigrants that the Biden Administration wants to relocate.” In Iowa, Gov. Kim Reynolds refused a federal request to hold children in emergency influx shelters at state-licensed facilities. As of Tuesday, no facilities have been opened in those three states.
“States don’t have the power to refuse entry to someone if the federal government has authorized their presence in the United States, which is exactly the situation with these children who are awaiting court hearings to determine if they qualify for asylum or other legal protection,” said Greg Chen, senior director of government relations for the American Immigration Lawyers Association.
As of Monday, more than 20,000 children were in the custody of the Department of Health and Human Services while the government searches for a family member to release them to while they await immigration proceedings. Because existing HHS facilities are at capacity, the government has taken over convention centers and doled out a dozen contracts to run emergency facilities, including those in Michigan and Pennsylvania, despite their being more than 1,000 miles away from the southern border. The Biden administration is also looking at placing children who do not have a family member here into state foster care systems.
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Children who come across the border from Mexico without a parent or guardian are first encountered by Border Patrol agents. They are held in Border Patrol facilities until bed space opens at one of HHS’s existing facilities or emergency facilities.
“Governors have a limited ability to impact the placement of unaccompanied minors in their states,” said Theresa Cardinal Brown, who oversees the nonpartisan Bipartisan Policy Center think tank’s immigration and cross-border policy.
States cannot block a federal attempt to move children from border facilities to state-licensed HHS facilities, which are permanent and not pop-up operations. However, the states could revoke an HHS facility’s license, though having justifiable cause could prove challenging, she said.
For emergency facilities to house migrants, such as convention centers or stadiums, the contracts are typically worked out between the Biden administration and the owners, meaning that governors could intervene because it does not involve a state-licensed facility.
Children are held by HHS while the government searches for a sponsor to release them to. Nearly all children have a family member in the U.S. already, but for those who do not, HHS may rely on foster programs to find a family to release the child to.
“If HHS determines that a child should be released to a parent or other adult, it’s hard to see how the governor would have any authority to prevent that release, just like a governor doesn’t have authority to decide if other children should live with their parents or relatives,” said Mark Greenberg, who worked at HHS’s Administration for Children and Families from 2009 to 2017 and now directs the Migration Policy Institute’s human services initiative.
Rep. Lisa McClain, a Michigan Republican, visited one such emergency HHS facility in her state this week and told the Washington Examiner that she suspects governors are probably trying to send a message to Washington with their refusals to cooperate.
“I think they’re trying to show that President Biden that they don’t support his policies, perhaps,” said McClain. “I do believe in states’ rights. So I think the message is, it’s more about messaging that, ‘I don’t support the policies; therefore, don’t send the children to my state.’”
In South Carolina, Gov. Henry McMaster blocked the state-regulated foster care system from assisting migrant children, a move that Rosanna Berardi, managing partner of Berardi Immigration Law in Buffalo, New York, said “initially seems callous on its face.” She said, though, that states legally can refuse the government’s request to place children without parents in the U.S. in its foster system.
One of the reasons that McMaster pushed back on Biden’s request is that the South Carolina foster system has “years of serious issues and deficiencies,” and the governor “took issue with the federal government’s request to place an unlimited number” of migrant children for an unspecified period of time, Berardi said.
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“Between the government’s vague directive (unlimited number, unspecified timing), and lack of qualified and trained staff, shortage of physical space and resources, health and safety concerns, etc., states are hesitant to allocate resources from their already strained child welfare systems,” Berardi wrote in an email.
HHS Administration for Children and Families did not respond to a request for comment.
