I recently wrote that there are two Biden-administration officials responsible for responding to the unfolding disaster at the Southwest border: Vice President Kamala Harris and former Ambassador Roberta Jacobson. Jacobson will be leaving at the end of the month, and with little in the way of policy to implement to address the situation, I cannot blame her.
Jacobson’s title is formally “Special Assistant to the President and Coordinator for the Southwest Border”. As I explained in that earlier piece, “czar” is not a formal title, but rather government shorthand for an official whose portfolio spans various different departments and agencies.
The idea is that the “czar” can trump other bureaucrats and appointees to make tough decisions in response to difficult situations. As I noted in an April 8 piece, “Border Patrol Apprehensions in March [Were] at [a] 20-Year High”, conditions at the Southwest border are the definition of “difficult”.
But even that headline does not tell the full story.
Twenty years ago was March 2001, and the 170,580 migrants apprehended then were very different from the 168,195 with which Border Patrol must deal with now. Most in 2001 were single adult males from Mexico, who could be quickly processed and sent back across the border (often to attempt another entry).
Last month, 52,904 of the migrants whom Border Patrol apprehended were adults with accompanying children (family units or FMUs). Of those, 40,248 were from the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras; 1,870 were from Mexico; and 10,786 were from somewhere else.
The Mexican families could usually be quickly returned, but it’s not even clear that this is happening. The rest have to be processed somewhere, which is why the government had to enter into a six-month contract to house 1,200 family migrants in hotels in Texas and Arizona, as I reported on March 23. There is no way that space will be sufficient.
They will almost all be released, despite DHS Secretary Alejandro Mayorkas’s contention on March 16 that “Families apprehended at the southwest border are ... currently being expelled under the CDC’s Title 42 authority.”
The “Title 42 authority” dates back to the Trump administration, and describes orders that the director of the Centers for Disease Control has issued in response to the pandemic. Pursuant to those orders, aliens who are apprehended entering illegally or without proper documents are to be quickly expelled.
If DHS could not fall back on Title 42, I’d need to find a word worse than “disaster” to describe the state of the border. Border Patrol expelled 101,897 migrants last month pursuant to that authority, leaving it “just” 66,298 others to process under the Immigration and Nationality Act.
On March 28, the Washington Post reported that only about 10 to 20 percent of families apprehended at the border were being expelled under Title 42, Mayorkas’s contentions (which came larded with several exceptions and caveats, admittedly) notwithstanding.
Then there are the children. Border Patrol apprehended 18,663 unaccompanied alien children (UACs) at the Southwest border last month — which, as I noted in that April 8 post, was 62 percent higher than any other month in recorded history (May 2019). In real terms, however, Border Patrol apprehended 2,714 more children at the Southwest border in March than in all of FY 2011 (15,949).
The Biden administration seems like it’s at sea in dealing with those children. In that April 8 post, I explained that most of those children are supposed to be handed over to the Department of Health and Human Services (HHS), for placement in an HHS-contracted shelter, but HHS simply does not have enough space.
In lieu of that, the department is scrambling to find sufficient room to house them humanely. Reports indicate that they are having trouble with the “humanely” part.
On March 31, AP reported from a CBP detention facility in Donna, Texas. It stated that more than 4,100 migrants were “crammed into a space intended for 250”. Some were families, but most were children who were awaiting placement into HHS facilities. That part is bad enough.
It reportedly gets worse for some of those children on the HHS side. In an April 8 post, I noted that Texas Governor Greg Abbott (R) had called out the conditions at an HHS-run facility in San Antonio, Texas, in response to “credible” complaints about sexual assault, understaffing, and food and medical issues that Texas state agencies had received.
Similarly, on April 1, ProPublica reported that the Biden administration’s HHS is “cutting corners on health and safety standards” at its temporary shelters.
“No safety standards are in place at the new facilities — unlike controversial ‘influx’ facilities used in the past” (a site in Midland, Texas, closed for a brief period of time for new arrivals, when the state warned that the water could not be drunk), some volunteers haven’t been screened and don’t speak Spanish, and one proposed location was “near a known Superfund site with high levels of toxic chemicals”.
Echoing Abbott’s concerns, ProPublica stated that even HHS’s “permanent shelter network includes some facilities whose grants were renewed this year despite a record of complaints about the physical or sexual abuse of children”.
If I were Jacobson, I would be leaving, too — her job is akin to being assigned to plunge toilets on the Titanic. But it does not have to be this way.
The main reason for this surge, in my opinion (and I have almost three decades of “hands-on” experience in this field), is that there is no clear immigration policy from the Biden administration.
The first immigration document that the administration issued was a memo on Inauguration Day, January 20, from then-Acting DHS Secretary David Pekoske captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities". It basically halted almost all enforcement in the interior of the United States, including the removal of large numbers of criminals.
If you don’t have interior enforcement, then once aliens are released into the United States at the border, they can basically live and work here forever, safe in the knowledge that they aren’t going to be removed in the short-term, and that their numbers will short-circuit any future efforts to remove them.
And, as I have explained numerous times, even under the Trump administration, DHS could only detain families for less than 20 days, due to some poorly decided court decisions in 2015 and 2016. The Obama administration challenged them, but did not take them to the Supreme Court, as it should have.
The Trump administration implemented regulations in August 2019 that would have replaced the 1997 Flores settlement agreement (which those decisions relied upon to create that 20-day rule). But those regulations were enjoined with respect to the release of families by a district court judge in September 2019, a decision that was affirmed by the Ninth Circuit in late December 2020.
On January 11, I predicted that this circuit-court decision would “Put[] Biden in a Fix”, and I had no idea how right I would be.
A search of the Supreme Court website does not reveal that the Trump administration sought high-court review of that decision, or that the Biden DOJ has, either. I doubt that Biden would have green-lighted any such move, however, because the then-candidate stated on his campaign website:
The Trump Administration has sought to circumvent the Flores agreement and hold children in detention indefinitely. But proven alternatives to detention and non-profit case management programs, which support migrants as they navigate their legal obligations, are the best way to ensure that they attend all required immigration appointments.
The late New York Gov. Mario Cuomo remarked “You campaign in poetry; you govern in prose”, but I hope that the story at the border is not being written in words that Biden planned. The president would be better suited to take heed of the observations of former heavyweight champ Mike Tyson, who noted: "Everybody has a plan until they get punched in the mouth.”
The body politic is getting punched in the mouth at the border, so perhaps Jacobson’s replacement could take note of “Iron Mike’s” wisdom and chart a new course, by seeking Supreme Court review or crafting new regulations more to the president’s liking that stem the flow of migrant families.
Of course, Congress could always pass a law to “fix” Flores, as a bipartisan federal panel pleaded with the legislature to do as an emergency measure in April 2019 during a similar border crisis. The president has sent a lot of amnesty legislation to the Hill, but now is the time to address illegal family migration, which the president has not done.
Similarly, as I have explained in the past, the families of unaccompanied children (who are not from Canada or Mexico) are encouraged to pay smugglers to bring those children to the United States under a poorly thought-out 2008 law, which directs those children almost always be placed with a “sponsor” in the United States.
Want proof? In February 2017, then-DHS Secretary John Kelly noted that: “Approximately 60% of minors initially determined to be 'unaccompanied alien children' are placed in the care of one or more parents illegally residing in the United States.” Who do you think pays for the 25 percent of UACs who are aged 14 and younger to come here, and many older ones as well?
Last month, 15,797 of the unaccompanied children Border Patrol apprehended were from the Northern Triangle, almost 85 percent of all UACs. “Just” 2,277 were from Mexico, and the Canadian numbers (if they exist) are so insignificant that CBP does not even capture that individual statistic.
We are bombarded with stories and pictures about the hardships that those families and children face in the United States, but it is a rare article that mentions the torment they suffer on their way to our border. That April 2019 report, however, painted the picture, vividly:
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.
Hate Donald Trump all you want, at least he tried to stop the problem. If the Biden administration won’t act, Congress must, by fixing the decisions that mandate the release of families within 20 days and reversing its own 2008 legislation.
Criticizing the conduct of the Vietnam War, then-Navy veteran, future senator and secretary of state, and current “Climate Czar” John Kerry asked Congress: “How do you ask a man to be the last man to die for a mistake?”
One could ask Congress “How do you ask a child to be the last one to suffer kidnap and trauma for bad laws?” or “How do you ask a migrant to be the last person deprived of their goods and dignity in responding to the decisions of an unelected judge?”
Enough’s enough, and the Biden administration and Congress should recognize their own errors, and those of the courts, and change course, now. Jacobson’s replacement ought to heed the advice of Mike Tyson, and advise the president to do so, too.