Biden’s Border Crisis and the Ninth Circuit’s ‘Family Separation’ Trap

The trauma all migrant kids face is just fine with two-thirds of the federal government

By Andrew R. Arthur on October 4, 2023

In section 235 of the Immigration and Nationality Act (INA), Congress required DHS to detain all inadmissible “applicants for admission”, including illegal entrants and aliens stopped at the ports. Given that our constitutional order gives Congress plenary power to make such rules, that is and should be the law. The problem is that representatives from the other two branches of the federal government — specifically the current holder of the executive power (President Joe Biden) and three judges from one circuit court (the Ninth) in the judiciary branch — believe they can override that legislative decree. Biden’s border crisis is being driven by family migrants, and the Ninth Circuit has boxed in any future administration’s response by tacitly endorsing “family separation” as a response — which it will likely then just as quickly disclaim.

Congress’ Plenary Power Over Immigration. To understand the illegality of what the Biden administration is doing at the Southwest border, you must first understand where the immigration authority in this country rests.

Article I, sec. 8 of the U.S. Constitution states, in pertinent part: “The Congress shall have Power ... [t]o establish an uniform Rule of Naturalization [and] [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

“Naturalization” is the process by which a foreign national in the United States — defined as an “alien” in section 101(a)(3) of the Immigration and Nationality Act (INA) — becomes a “citizen” (as defined by reference therein and in section 101(a)(22) of the INA). Inherent in Congress’ constitutional authority “to establish a uniform Rule of Naturalization”, therefore, is its power to regulate immigration.

As Congress itself has explained: “Long-standing Supreme Court precedent recognizes Congress as having plenary power over immigration, giving it almost complete authority to decide whether foreign nationals (aliens, under governing statutes and case law) may enter or remain in the United States” (emphasis added).

Lest you think Congress is puffing up its own authority, here’s the Supreme Court’s take on that “plenary power”:

Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added.]

That’s a long way of saying that when it comes to allowing aliens to enter and remain in the United States, Congress makes the rules, and the executive must carry them out.

Congress’ Detention Mandate for Border Migrants. Congress used that power in 1996 to reconfigure how the executive branch must deal with aliens arriving in the United States, again both at the ports of entry and improperly between them.

In its amended version of section 235 of the INA, Congress decreed that both classes of aliens be treated exactly the same, explicitly overruling a series of judicial opinions (known as “the entry doctrine”) that — illogically — gave aliens who crossed illegally without proper entry documents more constitutional rights than those who showed up for inspection at the ports of entry without proper entry documents.

Most importantly, however, in section 235(b) of the INA Congress mandated that the executive branch detain every inadmissible applicant for admission — including, again, illegal migrants — from the point at which they are encountered by Border Patrol and port officers to the point at which those aliens are (1) admitted; (2) removed; or (3) granted some form of “relief” from removal (usually asylum).

Prior Administrations Complied with the Detention Mandate. By and large, every administration prior to the current one complied with that detention mandate in section 235(b) of the INA.

For example, according to DOJ’s own federal court disclosures, between FY 2013 and FY 2016, the Obama administration detained 68.5 percent of all aliens encountered by CBP at the Southwest border throughout the removal process and detained an additional 18 percent of them for at least a little while. Just 13.6 percent were released without ever being detained.

Biden Ignores the Detention Mandate. By contrast, the Biden administration has ignored that detention mandate. Through the end of July, he released at a minimum 2,289,990 illegal migrants encountered by CBP at the Southwest border, while Border Patrol released an additional 100,594 in August (for a minimum total of 2,390,584), nearly all in violation of law.

Why so many modifiers on the total number releases? Because, as I explained in early September, the Biden administration is actively hiding the total number of its Southwest border releases, in the case of CBP at the ports flagrantly so.

Regardless, the migrants and smugglers know what’s up, and as U.S. district court Judge T. Kent Wetherell II found in his March opinion in Florida v. U.S., those migrant releases are what’s driving the border surge. Simply put, aliens are coming illegally because they know the Biden administration will let them live and work here indefinitely, if not forever.

“Family Units” and Big-City Blues. Biden’s border crisis is adversely affecting (to put it mildly) many of the big cities those migrants head to once they’re released. New York Mayor Eric Adams (D), for one, warns his migrant crisis “will destroy” NYC, while Illinois Gov. J.B. Pritzker (D) is pleading with the White House for relief.

Those cities’ travails are largely driven by the massive number of adult migrants who entered illegally with children in “family units” (FMUs) who have been released at the border and headed north.

A March NYC comptroller report explained that most of the FMU migrants who headed to the city ended up in its migrant shelter system, and aren’t moving out, while the New York Times reported last week that Adams has “instituted a rule requiring single adult migrants to reapply for shelter every 60 days ... to allow shelters to open up more space for families with children”.

If current trends continue, NYC won’t have any room for those “single adult migrants”. In August, Border Patrol agents apprehended more than 93,000 migrants in family units at the Southwest border — an all-time monthly record — and agents have encountered more than 500,000 FMUs who entered illegally at the U.S.-Mexico line in the first 11 months of FY 2023.

Flores Why Biden’s Not Entirely to Blame for the Family Migrants. All of that said, Biden’s not entirely to blame for the family migrant surge overwhelming those cities. Which brings me to Flores, or more precisely the 1997 settlement agreement in Flores v. Reno.

The Flores settlement agreement (FSA) was the culmination of years of litigation over the then-INS’s treatment of alien children in its custody, setting the terms of those children’s detention and releases.

Initially, the FSA was interpreted to only apply to unaccompanied alien children, not those encountered by DHS with their parents. That changed in 2014, when Obama, faced with a surge of FMUs (68,000-plus) and fearing that releases would simply encourage more adults to take the dangerous trek to this country with kids to ensure their releases, started detaining those families in federal facilities.

The FSA, however, requires that alien children be detained in licensed facilities, but there’s no federal child licensing scheme. So the Flores plaintiffs went to U.S. district court Judge Dolly Gee to enforce the agreement, and she responded by ordering DHS to release all aliens in FMUs within 20 days of encounter in August 2015.

The Ninth Circuit issued a July 2016 order limiting those FSA releases to just the children, not the adults in FMUs, but to avoid “family separation”, Obama’s DHS generally just let them all go, and illegal FMU entries have surged ever since.

By FY 2018, more than 100,000 migrants in FMUs were apprehended at the Southwest border, so the Trump administration first responded by implementing a policy under which all illegal entrants — including adults in FMUs — would be prosecuted for “improper entry” under section 275 of the INA.

By law, the children in those FMUs were deemed “unaccompanied” and sent to shelters run by the Office of Refugee Resettlement (ORR) at the Department of Health and Human Services (HHS). When DHS and ORR struggled to reunite the adults and children in those FMUs, a PR firestorm erupted in which critics claimed that Trump was engaged in family separation. In response, the president shut down that “zero tolerance” program after about six weeks.

Next, the Trump administration issued regulations to replace the FSA in August 2019, which among other things created a federal FMU detention licensing scheme that would allow DHS to hold FMU in compliance with the congressional detention mandate.

Judge Gee blocked those regulations from taking effect in September 2019, and her decision was largely affirmed by a three-judge panel of the Ninth Circuit in December 2020 in a case captioned Flores v. Rosen.

The Ninth Circuit Endorses Family Separation. Keep in mind that, by its terms, the FSA is supposed to end within 45 days of the issuance of such regulations. By my estimation, those August 2019 Flores regulations complied with both the spirit and the letter of the FSA, but then I’ve never been a Ninth Circuit judge.

Those earlier complaints about “family separation” and litigation attendant thereto partly drove those regulations, with DHS and HHS noting therein:

The issue of family separation and reunification continues to be the subject of litigation in multiple jurisdictions. This rule does not directly address matters related to that litigation. A significant purpose of this rule with regard to accompanied minors is to allow DHS to make decisions regarding the detention of families applying a single legal framework, and to enable DHS to hold a family together as a unit in [a family residential center] when lawful and appropriate.

Seems reasonable, particularly given the congressional detention mandate. Here’s how the three-judge Ninth Circuit panel responded:

The Final Rule suggests disingenuously that family separation “has generated significant litigation,” ... but the litigation it cites relates to the government’s recent practice of forcibly separating parents and children ... . Nothing in the [FSA] requires the government to take children from their parents against the parents’ will. The Agreement provides for the release of a minor to an adult “brother, sister, aunt, uncle, or grandparent” and, if none of those relatives are available, provides a mechanism for parents to “designate” another “adult individual or entity ... as capable and willing to care for the minor’s well-being.” ... Of course, parents can waive their children’s right to release under the [FSA]. [Internal citations omitted].

Someone’s being “disingenuous” here, but it’s not the drafters of those regulations. What the panel asserts is that parents could either agree to remain in detention by designating a responsible adult to take their child or could be released in 20 days by refusing to name such an individual. What did they really expect such adult migrants to do?

Even if DHS and ORR were to do some leg work and find other sponsors for those children, “forcible separation” would still occur — which the Ninth Circuit implicitly endorses. Don’t expect that panel or Judge Gee to take any blame when it happens, however.

Why Biden’s Still to Blame. While I am loath to predict how the Supreme Court would have ruled had it had the chance, I can think of at least four justices who would have feasted on that and other passages in Flores v. Rosen. Regrettably, they never had the chance.

Time ran out on the Trump administration before it could seek certiorari before the Supreme Court from that three-judge Ninth Circuit opinion, and not only did the Biden administration not seek further review, but it also hasn’t drafted its own regulations more to Judge Gee’s and the Ninth Circuit’s tastes.

Not that it’s any surprise, because as noted the Biden administration isn’t interested in detaining any aliens encountered by CBP at the Southwest border. Which, as Judge Wetherell explained, is why migrants keep coming here illegally.

Not only is that bad for Adams, Pritzker, and the rest, but it’s also bad for the kids in those FMUs as well, and their parents.

As a bipartisan federal panel convened by the Homeland Security Advisory Council to examine the “unprecedented surge in family unit ... migration” concluded in an April 2019 report: “In too many cases, children are being used as pawns by adult migrants and criminal smuggling organizations solely to gain entry into the United States”. They continued:

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.

Criminal migrant smuggling organizations are preying upon these desperate populations, encouraging their migration to the border despite the dangers, especially in remote places designed to overwhelm existing USBP infrastructure, and extorting migrants along the way, thereby reaping millions of dollars for themselves and the drug cartels who also charge money to cross the border.

Speaking of modifiers, note how there are none on the trauma to the kids in those FMUs: they’re all “traumatized during their journey to and into” this country when their parents senselessly — and to a degree cravenly — bring them along during their illegal entries into the United States.

The United States is facing the largest illegal migration crisis in its history, one driven and significantly exacerbated by hundreds of thousands of adult migrants who have used their children as pawns to ensure their releases. But, for some reason, the trauma those children all suffer is just fine with two of the three branches of our federal government. To conclude otherwise is “disingenuous”.