2019 Bipartisan Border Plan Would Solve Today's Migrant Crisis

Tell Biden, Mayorkas, and Congress: 'Read the damn report!'

By Andrew R. Arthur on March 16, 2021

In a March 16 statement, DHS Secretary Alejandro Mayorkas detailed efforts the Biden administration is employing in response to the so-called "challenges" at the Southwest border. He stated: "We are on pace to encounter more individuals on the southwest border than we have in the last 20 years." That does not need to occur, and would not if the administration just followed April 2019 recommendations from a bipartisan federal panel.

Those recommendations are contained in a "Final Emergency Interim Report" issued by the Homeland Security Advisory Council's (HSAC's) CBP Families and Children Care Panel.

HSAC's website explains that it provides the DHS secretary "real-time, real-world, sensing and independent advice to support decision-making across the spectrum of homeland security operations." In 2019, HSAC was under the Trump DHS, but that panel was truly bipartisan.

Karen Tandy, the chairwoman, was originally appointed to that position by Jeh Johnson, the last DHS secretary under the Obama/Biden administration.

Jim Jones, chairman of Monarch Global Strategies, was initially appointed to the panel by the first Obama/Biden DHS Secretary Janet Napolitano.

And Leon Fresco was a principal advisor to Sen. Chuck Schumer (D-N.Y.) when Schumer was chairman of the Senate Judiciary Subcommittee on Immigration. After that, he was deputy assistant attorney general for the Office of Immigration Litigation. In that role, he was the Obama/Biden administration's immigration lawyer at the Justice Department.

That report described a situation at the Southwest border in April 2019 that is almost identical to the one there today — the only difference being that Border Patrol did not then have CDC Title 42 authority to expel migrants who entered illegally or without proper documents. That authority was implemented by the Trump administration in response to the Covid-19 pandemic.

Mayorkas mentioned that authority — but left out Trump. Speaking of things the secretary did mention, though, he asserted that adult migrants traveling with children (family units or FMUs), including FMUs from countries other than Mexico (OTMs) are being expelled under Title 42 "unless Mexico does not have the capacity to receive the families".

That is a big caveat, and one that Mayorkas fails to expand upon — in particular by explaining how many FMUs Mexico is not accepting. There must be a lot, because the New York Times reported on March 4 that "the Biden administration plans to release parents and children within 72 hours of their arrival in the United States, a new policy that already is being carried out along the Texas border." Mayorkas did not mention that policy shift at all.

Which brings me back to that bipartisan panel report.

FY 2019 saw a huge surge at the border in both OTMs and FMUs (mostly OTM FMUs). That year, Border Patrol apprehended more than 851,000 migrants at the Southwest border, more than 473,000 of whom (55.6 percent) were FMUs.

Just fewer than 91 percent of those FMUs were from the three "Northern Triangle" countries of El Salvador, Guatemala, and Honduras. As I have previously explained, OTM FMUs take Border Patrol much longer than single adults from Mexico to process: 78.5 hours, as opposed to eight hours, respectively.

That means Border Patrol must detain those migrants longer than normal. Border Patrol stations and processing centers along the Southwest border, however, were built before 2011, when 90 percent of illegal migrants were single adults (primarily males from Mexico). They weren't meant for FMUs.

The panel's report noted that 40 percent of Border Patrol's resources in FY 2019 were absorbed in dealing with that crisis, meaning that agents weren't on the line, stopping drug and alien smugglers. CBP had to reassign CBP officers (CBPOs) from the ports to help out.

Even then, up to half of CBP resources at places along the border were dedicating to caring for migrants (feeding them, changing diapers, tending to medical issues, etc.) — not apprehending them.

Let's assume, however, that you really don't care about U.S. sovereignty, drugs, or the national security, and rather like open borders. Why would any of this matter?

Because, that panel 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.

What was true then is true now — you just don't hear about it. There are other hells in that report (adults falsely claiming that children are theirs to get into the United States, children being "recycled" by smuggling gangs, the risk of sexual exploitation of minors), but that excerpt neatly sums it up.

That panel found that the "major pull" factor encouraging adults to expose themselves and their children to these risks was the release of FMUs with a Notice to Appear (NTA, the charging document in removal proceedings). It described those children as "pawns".

Note that this is exactly the same policy the Times reported the Biden administration is implementing. And it will have the same deleterious results — you have my word on it.

Those FMUs are supposed to make asylum claims once released, but removal hearings in the interior take more than two years (time that those migrants can live and work in the United States), and at the end, the panel found, fewer than 15 percent of those Central American claimants received asylum.

That quick release factor, the panel concluded, was "further exacerbated" by a 2016 Ninth Circuit decision interpreting the 1997 Flores settlement agreement (FSA).

As the panel noted, the FSA originally only applied to unaccompanied alien children (UACs) in then-INS custody. That decision extended the FSA to migrant children in FMUs, and ordered them to be released from custody within 20 days (a timeframe it and a lower court made up out of whole cloth).

To prevent "family separation", the parents of those children were usually released, as well.

That's the bad part. The good part is that this bipartisan panel made a number of recommendations that would stem this flow of OTM FMUs, then and now. Here is one that would ameliorate the current border crisis:

Establish and staff 3 to 4 Regional Processing Centers (RPCs) along the border, scalable and with sufficient capacity to shelter all FMUs apprehended at the border and, among other things, provide safe and sanitary shelter, to include medical screening and care, credible fear examinations, vetting for identity and familial relationship, and evaluations for public health and safety, national security and flight risk.

This would require an emergency appropriation from Congress, as the panel notes, but that branch has not been shy about spending of late. But it would mean that migrants weren't sleeping on the floor.

More cheaply, however, the panel advised that Congress should pass legislation that would change the laws to close loopholes that migrants are exploiting.

First, it recommended legislation to modify asylum procedures "so that a hearing and decision can be provided to" FMUs within 20 or 30 days. Immigration judges (IJs) could be sent to the border to hear those cases quickly while those FMUs are detained. I heard cases in tight timeframes as an IJ; they can, too.

Second, it recommends a "Flores fix", to make clear that the 23-year-old FSA does not apply to accompanied children in FMUs. Additionally, Congress could make clear that DHS could detain children with close relatives who are not the child's parents, "when this is in the best interests of the child".

Third, Congress should amend the asylum procedures to require border-crossers to make their claims to CBP officers at the ports of entry, rather than to Border Patrol agents after apprehension. That would require CBP to be given the resources to process those claims without slowing legitimate entrants.

Fourth, amend the 2008 law that requires DHS to transfer all OTM UACs to Health and Human Services' (HHS) custody within 72 hours. They are placed in HHS shelters, and ultimately with a sponsor (most of whom themselves are here illegally) in the United States. That amendment would allow DHS to return those UACs to a parent abroad who requests repatriation of that child.

These are all commonsense — and again, bipartisan — proposals that Congress could start working on today and pass tomorrow. Instead, Congress today is working on massive amnesties, as I noted on March 15.

Fox News anchor Chris Wallace admonished viewers to "wear the damn mask" in response to the pandemic. Maybe he, and many others, should issue a similar plea to President Biden, Secretary Mayorkas, and every senator and member of Congress: "Read the damn report! And implement its recommendations."