A Bipartisan Panel Reports Alarming Findings on the Border Crisis

In a previous post, I discussed proposals that were included in the April 16, 2019, "Final Emergency Interim Report" from the Homeland Security Advisory Council's CBP Families and Children Care Panel. As I noted before, many of the findings affirm conclusions that the Center has reached previously. They are worth reiterating, however, given the confusion in the media over the unfolding disaster at the border, and the bipartisan makeup of the panel.

In Washington, the personal is often political, and that is especially true as it relates to immigration. For that reason, it is important to identify, as a preliminary matter, a few of the members of that panel.

One, Leon Fresco, served now-Senate Minority Leader Sen. Chuck Schumer (D-N.Y.) and was the staff director for the Senate Judiciary subcommittee on immigration. He self-identifies as "the primary drafter of S.744, the U.S. Senate's comprehensive immigration reform bill of 2013", also known as the Gang of Eight bill. NPR notes that he served as President Obama's "deputy assistant attorney general [who] oversaw all civil immigration litigation on the part of the U.S. government."

Another, Jim Jones, worked in the Lyndon Johnson White House at the age of 28, was a Democratic member of Congress from Oklahoma for six terms, and served as President Clinton's ambassador to Mexico.

A third, Theresa Cardinal Brown, is the director of immigration and cross-border policy at the Bipartisan Policy Center. She served in DHS under President George W. Bush, but was also "director of immigration and border policy at the U.S. Chamber of Commerce; associate director of business immigration advocacy at the American Immigration Lawyers Association; and worked in the immigration practices of large Washington, D.C.-based law firms."

These are not Trump loyalists, or immigration restrictionists.

Keep these facts in mind when the panel's report states:

After being held for several days at inadequate and overcrowded holding areas at [U.S. Border Patrol (USBP)] stations, most of the adults — provided they have a child with them and have stated that they fear returning to their country of origin — are issued Notices to Appear (NTA) at a later time before an immigration judge somewhere in the U.S. and then dropped at a local bus station or delivered to already overwhelmed non-profit shelters. 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 [family unit (FMU)] migration from Central America.

By far, the major "pull factor" is the current practice of releasing with a NTA most illegal migrants who bring a child with them. The crisis is further exacerbated by a 2017 federal court order in Flores v. DHS expanding to FMUs a 20-day release requirement contained in a 1997 consent decree, originally applicable only to unaccompanied children (UAC). After being given NTAs, we estimate that 15% or less of FMU will likely be granted asylum. The current time to process an asylum claim for anyone who is not detained is over two years, not counting appeals.

Read critically, this is a stunning indictment of migrants (largely from Central America, as that report makes clear) gaming loopholes in our immigration system with the assistance of smugglers along the Southwest border. The panel makes this even clearer later in its report:

Given recent decision rates, only a small percentage of FMUs being released with NTAs are being granted asylum (including the number of persons given NTAs who do not end up actually filing an asylum claim). Of those who actually file asylum claims, whether they have crossed the border or are visa overstays, approximately 80% ultimately are not granted. During the first quarter of FY19, the DOJ Executive Office for Immigration Review (EOIR) reports that less than 15% of the asylum claims of Central Americans who have been given a credible fear interview are actually granted. Despite the interests of the U.S. in enforcing the court ordered removal of unsuccessful asylum seekers, very few non-detained asylum claimants whose claims are denied are actually ever located and deported from the U.S.

Based on EOIR data for non-detained asylum applicants, it takes, on average, 2.5 years before an asylum claim is adjudicated by an immigration judge. For cases that are appealed, either to the Board of Immigration Appeals (BIA) or further to the federal district courts, it can be up to five years before a final decision is reached. An appeal to the BIA on average adds another 8 months to the process, extending the process for final adjudication of an asylum claim to over 3.3 years. In cases where a U.S. Court of Appeals then grants a stay of removal, it can take up to another 2 years for the final appeal to be decided. This means that an individual or family seeking asylum can remain in the U.S. for 4-5 years pursing an unmeritorious case before a removal order can be executed.

The dramatic increase in FMU apprehensions over the past year is directly linked to the U.S. government — executive, legislative and judicial branches — creating "pull factors" that incentivize migrants to bring a child with them to gain entry to and release into the U.S.

Similarly, the panel reports:

Some adults accompanied by a child revealed during CBP processing, that they were encouraged to bring a child with them by criminal smuggling organizations that are paid to transport the migrant and child to the U.S. border from Central America.

This is consistent with reporting from the Washington Post that I described in a March 8, 2019, post captioned "Humanitarian and National Security Disaster at the Border: A Congress-and court-caused Katrina".

Well, what about the "inadequate and overcrowding holding areas at USBP stations"? Isn't that a failing of the current administration? Not so much, in context. The panel's report states:

There are countless examples of [U.S. Customs and Border Protection (CBP) agents' and officers'] valiant attempts to aid families and children who have entered our country illegally and still attempt to perform their law enforcement mission to protect our country. However, it is not humanly possible to do both. On any given day, CBP is at half strength or less "on the line" in places at the border, endangering themselves and the country. Turned on its head, CBP personnel are instead tending to the daily needs of thousands of illegal migrants who CBP has already processed but is left holding for days and sometimes weeks in confinement space that was built decades ago and designed to confine only a fraction of these illegal migrants for hours, not days or weeks, and certainly not intended to confine tender age children.

That report notes that there has been a 600 percent increase in the number of FMUs in the past year, and that 73 percent of the children that the parents and guardians those FMUs are bringing with them to the United States are under the age of 13. It makes clear that "properly caring for this population [has] overwhelmed the entire government and brought our border security and immigration management systems to the point of collapse."

That said, I will not let Department of Homeland Security (DHS) management entirely off the hook. Specifically, the panel found that: "In March FY2017, FMU apprehensions accounted for less than 1% (.3%) of all USBP apprehensions. Currently, they constitute nearly 60% (57.6%) of all apprehensions." Those facts are supported by CBP statistics.

The upward trend in the number of FMUs apprehended along the Southwest border began to climb rapidly from May 2017 (1,580) to 4,631 by August of that year. It continued its climb (admittedly unsteadily) through FY 2018, from 4,836 in October 2017 to 16,658 by September 2018.

The Securing America's Future Act of 2018 (SAFA) would have plugged many of the loopholes that were then and are now being exploited by FMUs and unaccompanied alien children (UAC), as I explained in a May 2018 Backgrounder. As I stated therein, at that time:

[A]ccording to DHS:

Thus far in FY18, 13,186 [unaccompanied alien children (UACs)] were released into the interior of the United States — that's in addition to the 42,146 UACs and 52,147 UACs who were released in FY17 and FY16 respectively, bringing the total number of UACs released from FY16 to date in excess of 107,000.

Furthermore, according to DHS, the number of "family units (i.e. alien children who are accompanied by an adult claiming to be a relative or guardian)" who were apprehended by U.S. Customs and Border Protection (CBP) between FY 2016 and February 2018 totals more than 167,000, "[n]early all of whom are released into the interior of the United States." This is in addition to the aforementioned UACs who have been released.

That month, according to CBP statistics, 9,485 FMUs were apprehended. On June 21, 2018, SAFA failed in the House, based on a lack of Republican support. Had DHS effectively made the case for the fixes contained therein based on the situation that then existed at the border, it would have provided cover for additional Republicans (running in a difficult election cycle) to have voted for that bill, potentially leading to passage at a time when the GOP had control of the House.

The crisis at the border only got worse from there, with the number of FMUs apprehended in August increasing almost 38 percent from July (to 12,760), and increasing another 30 percent in September (to, as noted, 16,658).

In October 2018, USBP union chief Brandon Judd faulted senior DHS leadership for the situation at the border on Fox News, particularly as it related to "previous releases of asylum-seekers". That month, 23,116 FMUs were apprehended along the Southwest border.

By March 2019, the number had exploded to 53,077, an almost 130 percent increase from an already unacceptable figure in October 2018.

The panel recommends that three to four temporary regional processing centers (RPCs) quickly be established along the border "to shelter all FMUs apprehended along the border." As the panel describes them:

The RPCs may consist of tents or other non-permanent structures that can rapidly be put in place. The requirement is that that these RPCs have sufficient bed, quarantine infirmary space to detain all FMUs apprehended at or near the [Southwest border (SWB)] for a minimum of 20 days. All locations are to be sited within approximately 250-300 miles at their furthest from any spot on the SWB. Possible locations include Rio Grande Valley, El Paso, Yuma and immediately available current and excess military bases. Establishment of the first RPC should begin immediately, within 30 days. [Emphasis added.]

As an additional recommendation, the panel states that the number of immigration judges should be increased by 300 (as I noted my prior post) "with a single goal of resolving all FMUs asylum claims at the immigration court stage within twenty days or less." Pending such "rapid adjudication" (as the panel describes this process), the government should: "Require all processing at the RPCs — e.g., criminal, identity and parentage/DNA checks, medical screenings and mitigation of health risks by health care professionals and ... credible fear examinations." Those who do not establish a credible fear of persecution should be returned to their homes through expedited removal.

Who would build those RPCs? The panel explains:

[The Department of Defense (DOD)] or Federal Emergency Management Agency (FEMA) should be immediately tasked to erect the RPCs, possibly on existing or excess military property or on existing government owned properties, working in coordination the General Services Administration (GSA).

This is similar to a proposal that I included in an April 2, 2019, post, written in response to then-Homeland Security Secretary Kirstjen Nielsen's March 28, 2019, letter to Congress detailing the deteriorating situation at the border:

It is up to the president to use the authorities that he has to address the situation. One step would be for the president to declare a new national emergency and implement the land mass-migration plan. As my colleague Jessica Vaughan explained to Daniel Horowitz:

This plan calls for DHS to stand up tent facilities adjacent to the existing detention centers used along the border and house illegal migrants there — even the families — in lieu of the dizzying catch-and-release process that is now the norm.

If these migrants were coming by sea, there is no question that a mass-migration plan would have been implemented already, with bipartisan support. That is because of the well-understood dangers of a sea passage. Secretary Nielsen's letter makes clear that the land transit of Central Americans to the United States that is currently overwhelming our immigration system poses equal, albeit different, dangers to the migrants themselves.

It should be noted that President Obama in June 2014 issued a presidential memorandum in response to the then-influx of UACs across the Southwest border that created, in his words, "an urgent humanitarian situation requiring a unified and coordinated Federal response." As that memorandum stated:

Accordingly, I have directed the Secretary of Homeland Security (Secretary) to establish an interagency Unified Coordination Group to ensure unity of effort across the executive branch in responding to the humanitarian aspects of this situation, consistent with the Homeland Security Act of 2002 and Homeland Security Presidential Directive-5 (Management of Domestic Incidents)(HSPD-5), including coordination with State, local, and other nonfederal entities.

The secretary of Homeland Security, in turn directed Craig Fugate, then administrator of the Federal Emergency Management Agency (FEMA) "to serve as the Federal Coordinating Official who shall lead and coordinate the Unified Coordination Group." The memorandum explained:

As the Federal Coordinating Official, the Administrator ... shall lead and coordinate Federal response efforts to ensure that Federal agency authorities and the resources granted to the departments and agencies under Federal law (including personnel, equipment, supplies, facilities, and managerial, technical, and advisory services) are unified in providing humanitarian relief to the affected children, including housing, care, medical treatment, and transportation. The Administrator shall execute these responsibilities consistent with all applicable laws and regulations, including legal requirements governing the appropriate care and custody of UAC.

Secretary Nielsen's letter makes clear that such an effort is needed now, even more than it was in 2014. President Trump should follow President Obama's example and set up a similar unified coordination group to address the disaster that is unfolding along the Southwest border involving now not only UACs, but also family units. The situation has gotten too large for DHS to handle alone; a unified federal-government response is needed. That effort would support implementation of the land mass-migration plan.

To reiterate: DHS failed to take steps in a timely manner to stem the flood of aliens rushing the border months ago. The administration, however, has the authority (as both the panel and I make clear) to erect temporary housing to detain migrants entering illegally at least through the credible-fear processing stage.

As the panel notes, U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) currently "has effective capacity to obtain only 2,500 FMUs, and that capacity is woefully inadequate given the surge in FMU migration over the past year." Given this fact, it is incumbent on the administration to act now, and if additional emergency appropriations are necessary, to request them.

If Congress acts, the erection of RPCs would almost definitely remove the incentives for at least some population of migrants considering entering illegally to do so. As noted, the panel found: "The dramatic increase in FMU apprehensions over the past year is directly linked to the U.S. government — executive, legislative and judicial branches — creating 'pull factors' that incentivize migrants to bring a child with them to gain entry to and release into the U.S." Removing the possibility of short-term release would ameliorate that pull factor.

If Congress fails to act, the blame will be on them for the resulting disaster. What disaster (aside from a million or more illegal entrants this year)? The panel lists some of the dangers confronting those migrants:

FMUs illegally crossing our border consist of adults who are bringing a child with them, and most are being released into the U.S. with a NTA due to a shortage of detention capacity for FMUs.

Children who are crossing the borders of the U.S. are at great risk for multiple medical problems, which include but are not limited to, dehydration, malnutrition, infections, psychological trauma, physical injuries and all aspects of child maltreatment. Many of these sequelae are not necessarily evident within the context of a non-medical evaluation. An expectation for clinical acumen by CBP agents and officers is highly unrealistic. Even medical personnel need to have a higher level of expertise to anticipate some of the potential infectious disease complications that can be found in this population of children.

...

Children are being exploited and placed in danger in many ways –

• Adults fraudulently claiming parentage to a child to gain entry to the U.S. are increasing.
• Some children are being re-cycled by criminal smuggling organizations, i.e. returned to Central America to accompany a separate, unrelated adult on another treacherous journey through Mexico to the U.S. border.
• Human traffickers have extracted additional fees as a form of indentured servitude from FMUs who were released with NTAs and made their way to the interior of the U.S.
• The risk for commercial sexual exploitation of these children and teens is predictably high and will be very difficult to prevent after transport or release into the interior U.S.

Children being exploited (sexually and otherwise), with the additional danger of infectious diseases being spread throughout the United States? Preventing such harms is generally a bipartisan issue. If the president's critics claim that he's simply creating a crisis, all he needs to do is point to the panel's report, and its ultimate key finding: