Reports indicate that a January 23 GOP update on ongoing bipartisan border negotiations quickly devolved into rancor, with senators griping about being shut out of talks between Sen. James Lankford (R-Okla.) and a team of Democrats. Respectfully, those negotiations should be simple, because securing the border’s not hard — all that’s required is for DHS to comply with the law as written and detain every migrant encountered at the border and the ports. Congress would have to fund that detention, but those costs would diminish quickly once migrants realized that illegal entry is no longer a free ticket to living and working in the United States, and detention would provide benefits to cities and towns (or more importantly from a congressional view — states and districts) nationwide.
A Brief History of Border Detention. That statutory border detention mandate can be found — in three places — in section 235(b) of the Immigration and Nationality Act (INA). It’s crucial to understand not only why it’s there, but also where it came from and how it’s been undermined over the past 14 years.
Ever since the Immigration Act of 1903, federal law has required that excludable aliens at the ports of entry be detained until they are either admitted or expelled. We may think of Ellis Island in New York Harbor as the gateway to America for millions of new immigrants, but it was also the end of the line for thousands of others to whom Congress denied entry.
There was no statutory detention mandate, however, for aliens who entered the United States illegally until Congress amended section 235 of the INA to add one in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
Congress added that mandate to deter aliens from entering illegally and offering weak or bogus asylum claims simply to be released so that they could live and work in this country. Detaining aliens until they are granted asylum or deported removes that incentive.
The IIRIRA amendments also added “expedited removal” to section 235(b)(1) of the INA, which allows CBP officers at the ports — and Border Patrol agents between them — to quickly deport aliens who enter with fraudulent documents or no documents at all (including illegal entrants).
Expedited removal, however, comes with a “catch”: CBP must send aliens subject to expedited removal who claim a fear of harm or who request asylum to a USCIS asylum officer (AO) for a “credible fear” interview. If those aliens receive a “positive credible fear” determination, they are then allowed to seek asylum here.
Section 235(b) of the INA mandates that those aliens be detained pending further consideration of their asylum claims, and for more than a decade after Congress added that requirement to the INA, various administrations complied with it.
Consequently, between FY 2006 and FY 2009, only about 5 percent of aliens subject to expedited removal (fewer than 5,500 per year) made credible fear claims. That quickly changed, however, in January 2010, when ICE began releasing aliens who had received positive credible fear determinations into the United States on “parole” notwithstanding that detention mandate.
In FY 2010, 7 percent of aliens subject to expedited removal made credible fear claims (nearly 9,000 in total), a figure that jumped to 15 percent (more than 36,000) in FY 2013. By FY 2017, 44 percent of aliens subject to expedited removal made credible fear claims — 78,500-plus.
Still, 82 percent of aliens encountered by CBP at the Southwest border remained in continuous detention in FY 2013, as did 70 percent in FY 2014 and 66 percent in FY 2015, while total yearly encounter figures remained below 500,000.
Yet another blow would be dealt to Congress’ detention mandate in August 2015, however, when U.S. district court Judge Dolly Gee issued an order requiring CBP to release all children who arrived illegally with adults in “family units” (FMUs) within 20 days of encounter. To avoid “family separation”, the adults in those FMUs were generally released, as well.
In FY 2015, fewer than 40,000 migrants at the Southwest border came illegally in FMUs — 9.6 percent of apprehensions that fiscal year. By FY 2017, that jumped to more than 75,600 FMU apprehensions — 24.9 percent of the Southwest border total. And in FY 2019, well more than half of the aliens apprehended at the Southwest border — nearly 473,700 migrants or 55.6 percent of the total — were in FMUs.
A bipartisan federal panel convened to look at illegal family migration determined in an April 2019 report that a lack of immigration detention space for FMUs — which forced CBP to simply release those families and which was “exacerbated” by Judge Gee’s order — was driving that surge, endangering all of the aliens in those FMUs and traumatizing the children in particular.
That panel called on Congress to “roll back” the judge’s order legislatively and to expand FMU detention — a proposal that went nowhere in the Democratic-controlled House and Senate.
In lieu of congressional action, the Trump administration implemented the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Under MPP, “other than Mexican” migrants apprehended at the Southwest border were sent back to await their removal proceedings.
As I recently explained, it didn’t take many MPP returns to drive Southwest border encounters down. Fewer than 31,250 aliens encountered at the Southwest border were returned under MPP between June and September 2019 — 84 percent of them aliens in FMUs.
In May of that year, CBP encountered about 144,000 aliens at the Southwest border, 65 percent of whom (nearly 88,600) were in FMUs — at the time, monthly records in both categories.
As MPP expanded and news of family returns to Mexico spread, that dropped to fewer than 52,500 encounters in September — just 22,000 of whom (less than 42 percent) were in FMUs.
By February 2020, the month before Title 42 was implemented and once MPP was in full swing, CBP Southwest border encounters dropped to fewer than 37,000, with just over 7,100 of those aliens (19.3 percent) in FMUs.
Why did MPP have such a significant effect on Southwest border encounters? As DHS explained in its October 2019 assessment of the program, “aliens without meritorious [asylum] claims — which no longer constitute a free ticket into the United States — are beginning to voluntarily return home”.
Biden’s Migrant Releases Are Driving the Border Crisis. Biden quickly suspended and then terminated MPP, and instead released the vast majority of aliens CBP encountered at the Southwest border who were not expelled under Title 42 — 88.5 percent of the total by my conservative estimates, or 3.3 million migrants according to a recently passed House resolution.
By contrast, even at the height of that FY 2019 FMU crisis, the Trump administration detained 59 percent of the aliens CBP encountered at the Southwest border, in whole or in part.
As district court Judge T. Kent Wetherell II held in his March 8 opinion in Florida v. U.S. — a state challenge to that release regime — Biden’s migrant releases are driving the border surge:
There were undoubtedly geopolitical and other factors that contributed to the surge of aliens at the Southwest Border, but Defendants’ [Biden’s DHS] position that the crisis at the border is not largely of their own making because of their more lenient detention policies is divorced from reality and belied by the evidence. Indeed, the more persuasive evidence establishes that Defendants effectively incentivized what they call “irregular migration” that has been ongoing since early 2021 by establishing policies and practices that all-but-guaranteed that the vast majority of aliens arriving at the Southwest Border who were not excluded under the Title 42 Order would not be detained and would instead be quickly released into the country. [Emphasis added.]
The Senate can, as the New York Times reports, hire more agents, speed up processing, and “make it harder for migrants to claim asylum”, but it will make little difference unless migrants are detained.
Smugglers get paid thousands of dollars per migrant to get them here, and they will quickly figure out what those migrants need to do to stay if they are going to be released. Besides, Congress would have to trust the administration to implement whatever changes it enacts that don’t require detention, and the White House has proven that it can’t be trusted when it comes to immigration.
The Benefits of Detention. Detaining those aliens — including the families — will provide numerous benefits beyond simply solving the border crisis.
The reason why municipal budgets are reeling under the costs of dealing with tens of thousands of migrants who are hundreds to thousands of miles from the Southwest border is that the federal government has foisted those costs onto those cities.
Currently, New York City is required to house, feed, clothe, educate, and provide medical care for migrants (most of them families) in its shelters. If those aliens were detained until their asylum claims were adjudicated, all of those costs would be borne by DHS, and DHS could do the job much more efficiently and for a lower price.
Adjudication is also much quicker in detention. DOJ reports that the median detention time for detained cases is just 42 days, and under Obama it was closer to two weeks. By contrast, according to TRAC, the average non-detained case has been pending for 542 days, and many of those cases won’t be completed for a decade or more.
Detention would also provide economic benefits to cities and towns across the United States, as local jails open their doors to hold adult migrants and underutilized housing and dining facilities on military bases are repurposed for families.
The price tag would be high at first, but those costs would diminish quickly once would-be migrants find out illegal entry is no longer a “free ticket”, in DHS’s words, allowing them to live and work in the United States indefinitely, if not forever.
At stake in the Senate negotiations for the White House is $61 billion in Ukraine funding. For a small fraction of that cost, GOP negotiators could shut down the border, if they only demand that every alien encountered at the border be detained — which the law already mandates.