The New York Times has published a horrifying investigation into the exploitation of children who migrated to the United States as unaccompanied minors. The investigation by Hannah Dreier finds these children pressed into labor in every state in the U.S., in violation of labor law and often in horrifying conditions. It’s an essential read.

But it’s also essential not to see this as a sad but unavoidable tragedy, or as a necessary consequence of the economic desperation many of these children are under as they struggle to provide for families left behind (often in Central America). This is a story about two policy failures—one of which the Biden administration risks making much, much worse in the coming weeks.

The Government’s Vetting Process

The first policy failure is discussed at length in the piece. Under the Biden administration, employees at the Department of Health and Human Services who are responsible for the care and protection of children who arrive in the U.S. without parents or legal guardians have been pressured to get children out of government custody as quickly as possible. Once a child enters HHS custody, the agency is supposed to place children with relatives or other sponsors while they await a court date in their immigration case.

But the longer this process takes, the longer children stay in government custody and away from potential family. And if there are too many children for available government shelters, as there were in 2021, thousands of kids can end up stuck in Border Patrol cells. To avoid that, HHS has sped up the sponsorship placement process – and gone too far in the other direction.  In one recording Dreier obtained, HHS Secretary Xavier Becerra said that HHS needed to move more like an assembly line to place children with sponsors.

As a result, employees—mostly HHS contractors—have rushed through important vetting procedures and lost contact with children after they leave federal custody. This not only puts children at risk of missing their court date and losing their chance at permanent legal status, but makes them vulnerable to exploitation and mistreatment.

For the last decade, the United States has seen high numbers of unaccompanied children crossing the southwest border. This has put HHS in a precarious position. The agency has struggled to balance the need to prevent children from languishing for months or years in shelters (where standards of care can vary greatly) and the need to ensure that the adults they are entrusted to are in fact trustworthy. When the government moves too slowly, by requiring reams of paperwork and security checks, children are unnecessarily separated from their caregivers. When it moves too quickly, children are handed over to people who do not care for them enough. It’s a difficult balance issue, especially because the stakes are so high—but any mistake is unforgivable. HHS and the Department of Labor have already announced a series of actions they will take in the coming weeks to crack down on exploitation of migrant children – including an audit of the HHS sponsor vetting process. But continued scrutiny from Congress and the public is likely, and deserved.

But there’s also a second policy failure at play when tens of thousands of children are arriving in the United States without close relatives already here to care for them. And that one is easier to fix—or at least easier not to make worse—than careful recalibration of HHS vetting procedures.

Growing Limitations on Asylum

The second policy failure is limiting asylum for families coming to the United States, such that parents feel the only way to ensure safety for their child is to send them on alone.

This isn’t hypothetical. For the last half decade, the U.S. has prevented most migrants from pursuing asylum cases here—first under the Remain in Mexico policy, which forced people into overcrowded shelters or dangerous border encampments in northern Mexico while their asylum cases were pending, then under the Title 42 “public health” policy which has simply expelled them to Mexico with no asylum claim at all. For much of that time, the government has retained protections for unaccompanied children, but not for families. As a result, families who have already traveled nearly all the way to the U.S., with the intention of arriving and seeking protection together, have instead decided to split up at the journey’s end so that their children can pursue immigration cases alone.

Just last week, the Los Angeles Times wrote a piece about parents making such a decision after repeated failed attempts to schedule appointments to arrive at a U.S. port of entry using the CBP One app. As the U.S. has made the app all but the only way to seek asylum without being subject to Title 42, demand for appointments has far exceeded the number of available appointments. As a result, asylum remains all but inaccessible for many families—to the point where they must choose between staying together or sending their children to supposed safety alone.

The Asylum Transit Ban Would Make a Bad Situation Worse

But instead of expanding access to asylum, the Biden administration is posed to further restrict it. Under a regulation proposed last week, which the administration expects to put into effect once Title 42 ends in May, most asylum seekers who didn’t use the CBP One app to schedule an appointment (or seek asylum and get rejected in another country they traveled through, such as Mexico) would be presumed ineligible for asylum at all. They would have to follow a convoluted process with extremely high standards to qualify for any protection.

The regulation would not apply to children arriving without their parents. But it would apply to children arriving with them. In other words, the Biden administration is set to double down on the situation the LA Times depicted: parents being forced to choose between protection for their children and family unity.

When families plan for a child to travel to the U.S. alone, they have time and opportunity to find a support network for the child here—a close relative or trusted friend who will sponsor and care for them. When they make the decision at the last minute, they may lack that opportunity—or simply not know anyone in the U.S. who can care for the child. Those are the children most likely to fall through the cracks of the vetting process. And, of course, the more children are arriving unaccompanied, the more overloaded the whole system is—and the easier it is to make unforgivable mistakes.

The Biden administration is likely to face tough questions about the HHS vetting process. But it should also be asked why it insists on restricting asylum for families, when it knows the result will be more parents making an impossible choice between safety for their children and unity—and risking that the child ends up with neither.