Bad Laws — Not Trump — Are Driving the Biden Border Crisis

The president should take a lesson from the Obama administration

By Andrew R. Arthur on April 1, 2021

The Southwest border is in bad shape, as a March 29 Wall Street Journal opinion piece makes clear. But the Biden administration seems clueless as to why there is a crisis there. Blaming the Trump administration, as it has done reflexively, is just an excuse. The president never even mentions the loopholes that are encouraging illegal migrants, which are the real reasons many if not most are coming.

As an immigration judge, I learned the hardest thing for a person to do is to walk away from a bad situation. Be it a toxic relationship, bad associates, or drug addiction, people fear the unknown even when the known is a death spiral. And the situation at the border is very bad, indeed.

Case in point: The Journal’s depiction of a single incident on the Rio Grande reads like Dante’s Inferno.

A Honduran woman who had her leg broken by a smuggler paid the smuggler’s $3,500 fee to get on one of several rafts that included 65 adults and 152 children to ford the river near the “smuggler’s paradise” of Roma, Texas. Once in the water, Border Patrol agents and Texas officials appeared on the bank. So the smugglers threw an infant into the waters and capsized the rafts.

Agents and officers had to scramble to save the migrants, allowing the smugglers to escape. That is a depraved business model, but one that the administration obliviously continues to support and you subsidize. Here’s how.

U.S. law guarantees unaccompanied alien children from every country in the world — aside from Mexico and Canada — the ability to live in this country almost indefinitely if they enter illegally (between FY 2017 and FY 2019, ICE removed 15,520 unaccompanied children who had been apprehended by CBP, while 167,491 were apprehended entering illegally). You as a taxpayer will pay to shelter those children just long enough to allow the federal government to find “sponsors” for them in this country.

In the majority of cases, that sponsor is a parent, here illegally. How do I know that? DHS said so in February 2017. Logically, most of those parents paid the smuggler to bring that child to the border. And you know what happens to that parent? Nothing. In fact, you might even have to pay to transport those “unaccompanied” children to their parents.

That law passed two days before Christmas in 2008, which in D.C. means it passed almost three months into FY 2009.

In FY 2009, 19,688 unaccompanied children were apprehended by Border Patrol at the Southwest border, 82 percent of them from Mexico, and 17 percent from the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras.

Five years later, in FY 2014, Border Patrol apprehended 68,541 unaccompanied children, 75 percent of whom were from the Northern Triangle, and just fewer than 23 percent were from Mexico. What changed?

If I were DHS Secretary Alejandro Mayorkas, I might tell you that “[p]overty, high levels of violence, and corruption” in the Northern Triangle were to blame. But of course, there was “[p]overty, high levels of violence, and corruption” in El Salvador, Guatemala, and Honduras five years earlier, too.

But you know what did change? The law changed, in the favor of parents from the Northern Triangle illegally present in the United States who wanted their kids living with them.

The infant who was thrown into the river came with her mother. Bad law almost definitely drove them here, too.

That law started in 1997, when the government entered into the Flores settlement agreement. That agreement originally applied to the terms of confinement of unaccompanied children in then-INS custody, and required them to be placed in licensed facilities. It also favored their release from detention.

In FY 2013, Border Patrol apprehended 14,855 adults travelling with children, known as “family units” or FMUs.

One year later, there were 68,445 migrants in family units, and the Obama administration in the summer of 2014 responded with what was alleged to be “a blanket policy to detain all female-headed families, including children, in ... unlicensed facilities for the duration of the proceedings that determine whether they are entitled to remain in the United States”.

Not that there was anything wrong with that, because that is what section 235(b)(1)(B)(ii) of the Immigration and Nationality Act requires. And by FY 2015, the number of aliens apprehended in family units dropped to 39,838 (a 42-percent decrease).

In June 2015, the judge overseeing the Flores settlement agreement held, though, that the agreement applied to accompanied minors, too, and that this Obama policy violated Flores because the children were being held in unlicensed facilities. She proposed remedies that included release of those children.

The Obama administration thereafter asked the judge to reconsider her decision.

It denied that it had such a “blanket policy”, but argued: “This proposed order, if adopted, could be understood to require DHS to release into the interior all families seeking to illegally enter the United States — even if they possess no legitimate claims for relief or protection from removal.“

The Obama administration further asserted:

[T]he proposed remedies could heighten the risk of another surge in illegal migration across our Southwest border by Central American families, including by incentivizing adults to bring children with them on their dangerous journey as a means to avoid detention and gain access to the interior of the United States.

People like the mother and infant on the raft (although their nationalities are not listed), or the mother from Guatemala who was found unresponsive with her two children by the Border Patrol on March 20 (one child — a nine-year-old — could not be saved).

But why “Central American families” in particular? Mexican nationals can be quickly returned (well within the three to five days for which the Flores judge would have originally allowed detention in unlicensed facilities).

As the Center has explained, however, non-Mexican alien families can take days for Border Patrol to process, let alone remove. And, Central America is closer to the United States than the rest of the world, and therefore a shorter trip.

The judge (quoting Gandhi, who was not a party to the matter) dismissed these (very real, it turns out) concerns in August 2015, and ordered that children travelling with their parents and those parents had to be released from custody in 20 days (unless the parents were subject to mandatory detention).

The government appealed that order to the Ninth Circuit, asking in December 2015 that the matter be expedited because of a “significant surge of accompanied and unaccompanied migrant children” during the preceding 90-day period (news travels fast among smugglers).

Seven months later, in July 2016, the Ninth Circuit held that Flores does not mandate the release of parents in family units, but otherwise affirmed the District Court’s August 2015 order — including the 20-day release requirement. To keep from separating families, however, the parents are usually released within three weeks, as well.

Not surprisingly, illegal entries by family units soared, with Border Patrol apprehending 77,674 aliens in family units in FY 2016. More than 90 percent were from the Northern Triangle, while a handful (4.5 percent) were Mexican nationals. The Obama administration was plainly correct.

As a consequence, ICE did not invest heavily in detention space for families, which it could only hold for 20 days, tops. When the next migrant surge hit in FY 2019, bringing with it 473,682 aliens in family units (almost 91 percent from the Northern Triangle), ICE had 2,500 beds for them.

Congress did not respond by closing the court-created Flores loophole to clarify that the settlement agreement does not apply to accompanied children (as a bipartisan panel — that included one of the Obama attorneys who had filed the appeal of the August 2015 Flores order — had recommended), nor did it fund additional family detention space (another recommendation).

And it did nothing to address the loophole in the 2008 law that all-but requires the release of unaccompanied children who aren’t from Mexico and Canada to their parents illegally present in this country.

So the Trump administration took executive actions to stem the tide, entering into safe third-country agreements with Guatemala, El Salvador, and Honduras; and implementing such policies as the Migrant Protection Protocols (MPP), Prompt Asylum Claim Review (PACR), and the Humanitarian Asylum Review Process (HARP).

MPP in particular required non-Mexican migrant families to return to Mexico to await their asylum hearings at port courts in the United States. MPP did not, however, apply to unaccompanied alien children.

Border Patrol apprehensions at the Southwest border (of which there were 132,856 in the month of May 2019), fell 78 percent, to 29,205, by January 2020.

And of course, in March 2020, the CDC began issuing orders under Title 42 of the U.S. Code that mandate the expulsion of most illegal migrants, driving apprehensions down to 16,182 by April 2020 (when Border Patrol had fewer than 100 migrants in custody).

Those orders did apply to unaccompanied children, and in April 2020, Border Patrol apprehended just 712 of them — an almost 94-percent drop from May 2019.

The Biden administration kept Title 42 (though it no longer applies it to unaccompanied children), but has ended MPP, PACR, and HARP, as my colleague Robert Law noted in February, and has suspended with an eye toward terminating those safe-third country agreements.

A former Obama-era DHS official recently derided Trump’s policies as “cruelty”, and asserted that they were “failed”.

I would question — based on the foregoing statistics — whether those policies were “failed”. “Cruelty” can be a subjective assessment, however, one that raises the question of whether it is “compassionate” or “cruel” to continue policies that encourage mayhem of the sort described in the Wall Street Journal.

I would argue that true “cruelty” is the promotion and propagation of loopholes that encourage migrants to place themselves in the hands of smugglers who would break their legs, or throw their children into a river at night.

The hardest thing to do is walk away from a bad situation. But it almost always is the right thing to do.