On Tuesday, Scientific American published a "Policy & Ethics" opinion piece captioned "Our Immigration Policy Has Done Terrible Damage to Kids: Here are four steps the Biden-Harris administration should take immediately to prevent further harm". That piece is a mix of scientific studies, subjective opinion, talking points, and facts. The biggest issue, however, is that it treats illegal immigration by alien minors (and their parents) as a force of nature — an inevitability — rather than a volitional choice made by those children — or more likely, their adult family members.
Consider the following: "Children arriving at our southern border have made harrowing journeys, faced violence and suffered severe physical distress." That is absolutely true, and dovetails with the April 2019 findings of the Homeland Security Advisory Committee's bipartisan CBP Families and Children Care Panel in its Emergency Interim Report.
It found:
Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.
The panel made a number of recommendations in response to this and other (similar) findings, many of which had to do with removing the "pull factors" that encourage unaccompanied alien children (UACs) and adult migrants travelling with children ("family units" or FMUs) to enter the country illegally.
The Scientific American piece does not even discuss those pull factors, but, if anything, the proposals therein would simply increase the incentives for FMUs and UACs to enter the United States illegally.
For example, it calls on President-elect presumptive Joe Biden to end the Migrant Protection Protocols (MPP or "Remain in Mexico") — which, the article notes, the former vice president has vowed to do.
Under MPP, migrants entering illegally or without proper documents along the Southwest border who are nationals of countries other than Mexico (OTMs) claiming credible fear are sent back across the border to await their asylum hearings. It was enacted in response to a surge of migrants — the majority FMUs (and in particular, OTMs) — at that border in FY 2019, a surge that created a humanitarian disaster.
The CBP Families and Children Care Panel reported that, due to that surge — which overwhelmed DHS resources — CBP was simply releasing FMU into the United States with a Notice to Appear ("NTA", the charging document in removal proceedings) to await court dates. It explained:
The NTA, combined with long delays in the adjudication of asylum claims, means that these migrants are guaranteed several years of living (and in most cases working) in the U.S. Even if the asylum hearing and appeals ultimately go against the migrant, he or she still has the practical option of simply remaining in the U.S. illegally, where the odds of being caught and removed remain very low. A consequence of this broken system, driven by grossly inadequate detention space for family units and a shortage of transportation resources, is a massive increase in illegal crossings of our borders, almost entirely driven by the increase in FMU migration from Central America. [Emphasis added.]
The report did not recommend MPP or anything like it (instead calling for faster asylum processing in the United States), but MPP plainly had an ameliorative effect on the problems the panel described: The number of FMUs apprehended by the Border Patrol along the Southwest border after MPP was implemented (it was enjoined for a period of time in April and May 2019) dropped from 84,486 in May 2019 to 15,824 in September 2019 (reaching a pre-pandemic low of 4,610 in February 2020).
The Scientific American piece contends that MPP "force[s] asylum seekers to wait in Mexico for the duration of their legal proceedings, placing children and families in squalid and dangerous makeshift camps or shelters where they are easy targets of violent cartels."
Actually, MPP doesn't force anyone to do anything (aside from remain outside the United States). It is the choice of those OTMs to remain in Mexico pending their asylum hearings. This might sound cold, but the fact is some, many, or all of those foreign nationals subject to MPP who are legitimate asylum applicants could seek protection in Mexico, safely.
My former colleague Kausha Luna made clear in June 2018 that Mexico has a legal framework for the protection of refugees. In fact, given that Mexico is a party to the 1984 Cartagena Declaration on Refugees, its asylum laws are much broader than those in the United States, as Luna explained. She continued:
Moreover, if an individual does not qualify for refugee status under this extended definition, the Ministry of the Interior may grant complementary protection, which halts the return of an individual to a territory of another county where his or her life would be in danger of being subjected to torture or other cruel, inhuman, or degrading treatment or punishment.
Many OTMs have, in fact, sought protection in Mexico. UNHCR reported in April that in the first three months of 2020, asylum applications had increased by 33 percent over the same period in 2019. It stated: "The nearly 17,800 new asylum claims in 2020 were principally from nationals of Honduras, Haiti, Cuba, El Salvador and Venezuela." Those are many of the same countries from which foreign nationals in MPP hail.
The Scientific American piece also calls on the Harris-Biden administration to "improve care and appropriate custody of children" after they have entered the United States illegally.
Regardless of how they enter, I agree that children are entitled to humane care. Respectfully, however, I am not sure that the authors understand the current system, but in any event, their proposals (again) would likely simply encourage more illegal migration, with its consequent trauma to those children.
On the first point, the authors contend: "Detention center conditions — cold, unceasingly lit and lacking proper food and health care — are hostile environments for children." I have been to ICE family detention centers (I had jurisdiction over one as an immigration judge), and that characterization is just not correct. Read my February 2020 post "The View from the Family Detention Center in Dilley: Kids in classrooms, not cages — with karaoke".
The South Texas Family Residential Center in Dilley, Texas, has housing where families can remain together. The residents have access to medical, dental, and mental-health care, receive three hot meals a day, and the facility is a Texas-licensed charter school — providing classes from pre-K through high school. There are playgrounds, basketball hoops, fields for soccer, and indoor recreation facilities.
What I believe the authors are describing, however, are Border Patrol processing centers (but even their characterization of those is not exactly correct, in my opinion).
As I explained in August: "Before 2011, 90 percent of Border Patrol apprehensions were single adult males, and CBP's detention and processing facilities were largely built in the 1980s and 1990s to accommodate those migrants."
Those detention facilities were never meant to hold FMUs or UACs, but as migrant demographics changed, CBP — under the Obama administration — erected chain-link fencing to separate migrants therein by gender and age. Detention in those facilities is meant to be a temporary stop-gap, but when there are surges of UACs or FMUs, it can last longer, as the CBP Families and Children Care Panel noted.
The logical response is for Congress to appropriate money for CBP to build more appropriate processing centers (as that panel recommended), but that has not happened.
It appears that the Scientific American piece seconds such a solution, as the authors allude to the need for "ensuring hygienic, child-friendly spaces for screening and processing children's cases". But, that is before they decry "[d]etention center conditions", which again appears to be conflated with CBP processing centers.
In any event, the authors continue to recommend "[p]lacing children with family or in family[-]like or small-group settings with case management". Generally, even now, OTM UACs are placed within 48 hours into shelters funded by the Office of Refugee Resettlement (ORR), until a sponsor can be found in the United States (most of whom are here illegally), so I am not sure what those authors are proposing.
The current situation simply encourages parents in the United States to have their foreign-national children smuggled into this country (with the attendant risk of injury and other trauma), as I explained in April 2019.
If the Scientific American piece is proposing something even more lax than the status quo, those incentives will increase — as will the danger to the UACs. But, once more, the authors never even seem to consider this fact, or if they do, they never allude to it.
Finally, the authors of the Scientific American article contend that "it's essential to ensure access to social safety nets for immigrant children and families." There is a lot to unpack in just that one recommendation, and the authors don't do much to help by omitting certain facts and conflating others.
Asylees in the United States are currently eligible for work authorization, financial and medical assistance, job placement, and English-language training — a point the authors omit. Even asylum applicants (after a period of time) are eligible for work authorization.
Instead, here is their contention: "Under the Trump administration, immigrant families' enrollment in the Supplemental Nutrition Assistance Program declined, with the trend accentuated when particular policies were announced, such as the 'public charge' rule restricting legal immigrants' access to the federal safety net."
Then-Judge (now Justice) Amy Coney Barrett put it best in her dissent to the Seventh Circuit's opinion in Cook Co. v. Wolf, when she stated: "There is a lot of confusion surrounding the public charge." Respectfully, the Scientific American article does nothing to clear up that confusion.
Perhaps the authors should read Judge Barrett's dissent, because she took the opposite tack, explaining:
[I]t's important to recognize that immigrants are dropping or forgoing aid out of misunderstanding or fear because, with very rare exceptions, those entitled to receive public benefits will never be subject to the public charge rule. Contrary to popular perception, the force of the rule does not fall on immigrants who have received benefits in the past. Rather, it falls on nonimmigrant visa holders who, if granted a green card, would become eligible for benefits in the future. [Emphasis added.]
In any event, the authors favor repeal of that rule, as well as "restricting detention to those who have committed serious crimes, and building on the Deferred Action for Childhood Arrivals [DACA] program" as ways to "eas[e] the current climate of fear that afflicts immigrant communities and assuring the health and development of America's immigrant-origin children."
Lest you think I am jumping around that article, those are proposals that the Scientific American authors believe will "ensure access to social safety nets for immigrant children and families."
But DACA does not enable its recipients to access traditional social-safety net benefits "like Social Security, college financial aid, or food stamps", as Indiana University–Purdue University Indianapolis explained in a fact sheet on the program.
If the Scientific American authors are proposing expanding DACA to include such benefits (which they do not explicitly state), it will simply encourage UACs and FMUs to enter illegally to obtain such benefits. Again, illegal migration is a volitional choice, sometimes by UACs (who can be as old as 17, an age at which my father was working in a steel mill), but more often by parents.
That, in turn, will expose those children to the traumas the CBP Families and Children Care Panel asserted they can — and often do — face during the trek to this country.
That said, simply expanding the current DACA program would do the same, as UACs (and parents of child migrants) would seek to come to this country to take advantage of that program.
The DACA reference appears to be more of a non-sequitur than anything else in this context, as is the restriction of immigration detention to serious criminals. With respect to the latter, it is unclear what that has to do with the "social safety net", unless they mean not separating less-serious criminals from their families.
Such separation, however, is not just a function of criminal activity generally (prisons are full of somebody's fathers, mothers, sons, and daughters), but of the immigration laws themselves. Section 236(c) of the Immigration and Nationality Act (INA) mandates the detention of many aliens who have committed crimes the authors likely consider less than serious — including all aliens who entered illegally and are also removable on criminal grounds.
Once more, engaging in criminal activity is a volitional act. If you are an alien in the United States who breaks the law, incarceration followed by immigration detention is a likely consequence.
What the authors appear to be calling for is the Biden-Harris administration to ignore large swaths of the enforcement provisions in the INA, and allow more aliens — and in particular more UACs — into the United States permanently. But, if they are, they should be clear about it, and not cloak in the rubric of preventing "damage to kids".
Why? Because immigration does not exist in a bubble, and as the incentives to illegal entry increase, the number of illegal migrants will too — as will the danger to them, and especially the trauma to the "kids" themselves. You don't have to trust me. Just read the bipartisan April 2014 CBP Families and Children Care Panel report.