- DHS has reported that the weekly total of migrants apprehended crossing the border illegally has dropped to 4,200, which would mean that approximately 18,000 aliens will be caught by Border Patrol in April, if trends hold.
- This figure is much lower than it has been historically and even than it has been in the recent past.
- Massive waves of aliens, and in particular unaccompanied alien children and aliens travelling in family units, have exploited loopholes in the law in the past decade. Those loopholes include a low credible-fear standard, a lack of detention resources at the border, recent court interpretations of the more-than-two-decades old Flores settlement agreement, and the law called the TVPRA.
- The tide of aliens entering illegally has largely been stemmed by the president's diplomatic efforts and administrative actions.
- The presumptive Democratic nominee, Joe Biden, has pledged to undo the president's immigration agenda.
In my last post, I explained how, even with the White House's restrictions on travel over the Southwest border, U.S. Customs and Border Protection (CBP) was still plenty busy, stopping human smugglers, disrupting a stash house, and seizing massive quantities of illegal drugs. In a Monday press release, the Department of Homeland Security (DHS) quantified how those restrictions had cut down on the number of migrants entering the country illegally over that border. The number is important to keep in mind when the current emergency passes, and that 1,954-mile border goes back to "normal".
Specifically, DHS reported that Border Patrol agents had apprehended a weekly total of 4,200 migrants crossing illegally into the United States, down from 10,000 prior to "the current containment efforts", logically including the White House restrictions.
That equals out to 600 migrants entering illegally per day, or 18,000 per month in April if the current trends hold. Compare that number to March 2000, when (according to CBP statistics) the Border Patrol apprehended 220,063 aliens in one month alone at the Southwest border. That is the two-decade high for apprehensions, and a big reason why, as my colleague Mark Krikorian noted in the wake of the September 11 attacks, an estimated 8,000 additional Border Patrol agents were assigned to the Southwest border.
Or compare it to May 2019, when Border Patrol agents apprehended 132,856 migrants who had entered the United States illegally. That number of apprehensions had not been seen since March 2006, when agents detained 160,696 "irregular" migrants along that border. In fact, not more than 100,000 migrants had been apprehended by Border Patrol in any single month prior to May 2019 since April 2007 (104,465).
If you follow the Border Patrol apprehensions statistics in a historical context, and compare those apprehensions with legislation, case law, and economics, the story becomes clear.
The crackdown following September 11 slashed the number of entries until smugglers and migrants found work-arounds in 2002, with peaks and valleys in the intervening years until the Great Recession of 2008 and the implementation of the Secure Fence Act of 2006 limited the desire and ability (respectively) of migrants to enter the United States illegally to live and work.
Specifically, in FY 2006, 1,071,972 migrants were apprehended entering illegally along the Southwest border. That dropped to 540,865 by FY 2009, eventually cratering in FY 2012 when 356,873 migrants were apprehended along that border.
Not coincidentally, the U.S. unemployment rate was 4.4 percent in December 2006, but even four years after the economic downturn, unemployment in December 2012 in the United States still stood at 7.9 percent, according to the Bureau of Labor Statistics. It had reached a high of 10 percent in October 2009, and would not fall below 6 percent until September 2014.
Similarly, between 2006 and 2009, 570.35 miles of primary fencing was constructed along the Southwest border, with an additional 20.1 miles by 2012. Additional construction fell off in 2013 (0.27 miles), 2014 (0.94 miles), and 2015 (0.89 miles), before halting altogether between 2016 and 2018.
Then, there was the massive increase in "credible fear" cases over this timeframe. In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress added a new section 235(b) to the Immigration and Nationality Act (INA). That provision was intended to limit the number of aliens who would have access to full removal proceedings before an immigration judge, as the Conference Report for IIRIRA explains:
New paragraph [235(b)(1) of the INA] provides that if an examining immigration officer determines that an arriving alien is inadmissible under section 212(a)(6)(C) (fraud or misrepresentation) or 212(a)(7) (lack of valid documents), the officer shall order the alien removed without further hearing or review, unless the alien states a fear of persecution or an intention to apply for asylum . ... The purpose of these provisions is to expedite the removal from the United States of aliens who indisputably have no authorization to be admitted to the United States, while providing an opportunity for such an alien who claims asylum to have the merits of his or her claim promptly assessed by officers with full professional training in adjudicating asylum claims. [Emphasis added.]
An alien who is inadmissible under one of the referenced provisions in section 212 of the INA and who claims a fear of persecution receives what is known as a "credible fear" review, which I described in an April 2017 Backgrounder. If Congress's purpose in section 235(b) of the INA was "to expedite the removal from the United States of aliens who indisputably have no authorization to be admitted to the United States," it did not work out that way, as my colleague Jessica Vaughan made clear in October 2016:
The number of people arriving at U.S. land borders and ports of entry to file asylum applications has soared dramatically in the last year, and is now about 10 times higher than it was in 2009, according to statistics from U.S. Citizenship and Immigration Services (USCIS), the agency that processes these applications. The increase in so-called "credible fear" claims follows a 2009 Obama administration executive action that calls for such arrivals to receive a grant of parole into the country to pursue their asylum claim, rather than stay in custody pending a full review of their qualifications, as the law stipulates. Typically these migrants pay criminal smuggling organizations large sums to facilitate their passage through numerous safe countries in order to reach the U.S. border to claim a fear of return. Judging by current approval statistics from the immigration courts, ultimately few will be found qualified for asylum, but nearly all are allowed into the country, and they are not considered a priority for deportation under current policy.
Vaughan's assertions are backed up by statistics from USCIS. In FY 2009, the agency completed 5,523 credible fear cases. That number climbed to 8,926 in FY 2010, 11,716 in FY 2011, and 13,607 in FY 2012.
Those credible fear cases started to mushroom from there: 36,454 in FY 2013 and 49,607 in FY 2014, before dropping slightly to 47,928 in FY 2015, and then skyrocketing to 92,071 in FY 2016. The start of the Trump administration slowed claims briefly (79,977 in FY 2017) before smugglers and migrants concluded that without a legislative fix, the system could still be exploited. In FY 2018, USCIS received 99,035 credible fear claims, and in FY 2019, it received 105,439 — an increase of 1,900 percent in just 10 years.
Finally, there were the dire consequences of the Flores settlement agreement, exacerbated by the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).
In the words of former INS Commissioner Doris Meissner (who signed it), the Flores agreement, which was entered into between the Department of Justice and a class of plaintiffs in 1997:
[W]as a settlement of a long-standing piece of litigation that said that children would be detained in the least restrictive setting possible and for the shortest period of time in order to be placed with either a family member or another care situation.
With respect to the TVPRA, as I have previously explained:
Section 462 of the Homeland Security Act of 2002 vested jurisdiction over the care and placement of [unaccompanied alien children (UACs)] in removal proceedings with the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS). The TVPRA distinguishes between UACs from "contiguous" countries (Canada and Mexico) and from aliens who are nationals of "non-contiguous" countries. A UAC from a contiguous country can be returned if the alien has not been trafficked and does not have a credible fear. Under the TVPRA, however, aliens who are not from Canada or Mexico are to be transferred to the care and custody of HHS within 72 hours and placed in formal removal proceedings, even if they have not been "trafficked". ORR statistics reveal that the average length of time that a UAC remained in that office's care in FY 2018 was 60 days. ... Between February 2014 and September 2015, 56,000 (80 percent) of the children were placed with sponsors illegally in the United States and an additional 700 were placed with sponsors in deportation proceedings. In FY 2014, according to CRS, most of the UACs who were released were placed with parents or legal guardians.
Not surprisingly, a large number of alien parents illegally present in the United States (and in particular, following passage of the TVPRA, from countries other than Mexico (OTMs)) sought to use the law to reunify with the sons and daughters whom they had left behind.
According to the Congressional Research Service (CRS):
Apprehensions of Mexican UAC rose substantially from FY2008 to FY2009 and have fluctuated since then between roughly 9,000 and 17,000 UAC apprehensions per year. In contrast, the number of apprehensions of UAC from Guatemala, Honduras, and El Salvador have increased substantially starting in FY2012, and have remained high since then. In FY2009, Mexican UAC accounted for 82% of all 19,668 UAC apprehensions that year, while the other three Central American countries accounted for 17%. By the first eleven months of FY2019, those proportions had reversed, with Mexican UAC comprising 13% of the 72,873 UAC apprehensions and UAC from the three Central American countries comprising 85%.
How many UACs? In FY 2008, CBP apprehended fewer than 10,000 UACs along the Southwest border. That number increased to, as noted, 19,668 in FY 2009, before falling slightly in FY 2010. It fell again in FY 2011 to 16,067, before increasing significantly to 24,481 in FY 2012, 38,759 in FY2013, and jumping to 68,541 in FY 2014. An additional 68,445 family units ("FMUs", that is an alien child or children travelling with parents or legal guardians) were apprehended in FY 2014, as well — a 361 percent increase over FMU apprehensions in FY 2013 (14,855).
That dramatic increase in UAC and FMU apprehensions in 2014 created a humanitarian and border-security crisis at the border (and in particular in the Rio Grande Valley of Texas, the main sector for entry of each of these groups), prompting a response from the prior administration:
During 2014, when UAC apprehensions surged far beyond previous levels, the Obama Administration developed a working group to coordinate the efforts of relevant agencies. It also opened temporary "influx" shelters and holding facilities to accommodate the large number of UAC apprehended at the border, initiated programs to address root causes of child migration in Central America, and requested funding from Congress to deal with the crisis.
Not surprisingly, the number of UACs apprehended in FY 2015 fell in response to these measures, to 39,970, and the number of FMUs also fell, to 39,838, a 42-percent decrease in both categories.
Enter Dolly Gee, a federal judge in the U.S. District Court for the Central District of California, who is now charged with overseeing the Flores settlement agreement. As my former colleague Matt Sussis, explained, in 2015:
[Judge] Gee ... ordered that the Obama administration must release detained children and their mothers who were caught crossing the border illegally, saying that detention centers in Texas had failed to meet the Flores standards.
This was a major development — Gee had now expanded Flores to cover not only unaccompanied children, but also accompanied children.
In fact, Judge Gee even went a step further. Flores calls on the government to release children "without unnecessary delay". Gee interpreted that to mean 20 days. In other words, now all minors in detention, whether or not they were with their parents, couldn't be detained for more than three weeks.
The next year, in 2016, Ninth Circuit Judge Andrew Hurwitz, joined by judges Michael Melloy and Ronald Gould, reaffirmed that Flores applies to all children, regardless of whether they're accompanied — although they did reverse the notion that parents have an affirmative right of release.
Again unsurprisingly, the number of UACs and FMUs increased in FY 2016, to 59,692 and 77,674, respectively.
The beginning of the Trump administration in FY 2017 saw a significant decline in the number of UACs (41,435, a 31 percent decrease) and a slight 3 percent decline in the number of FMUs (to 75,622), but that trend did not last. By FY 2018, the number of UACs apprehended along the Southwest border had climbed to 50,036, and the number of FMUs jumped to an incredible 107,212.
In the face of this surge, in June 2018 the Department of Justice asked Judge Gee to: "exempt DHS from the Flores Settlement Agreement's release provisions so that ICE may detain alien minors who have arrived with their parent or legal guardian together in ICE family residential facilities." In a July 2018 order, she denied that request.
Subsequently, the figures in FY 2019 were astronomically worse, with UAC apprehensions at the Southwest border increasing to 76,020, and FMU apprehensions shooting up 342 percent to 473,682 — almost 56 percent of all aliens apprehended along the border last fiscal year.
Smugglers and migrants had learned how to game the system to remain in the United States indefinitely, and the crisis at the border became a disaster. The situation prompted the Homeland Security Advisory Council's bipartisan CBP Families and Children Care Panel in April 2019 to issue a "Final Emergency Interim Report". It made clear where the problems lay:
After being held for several days at inadequate and overcrowded holding areas at [Border Patrol] 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 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. [Emphasis added.]
No "expedited removal" as Congress had decreed in 1996. Simple release for a removal hearing at some point in the future, and if removal is ordered, the option to disappear into the United States with little or no chance of expulsion.
That report also recommended that Congress should: "Amend the [TVPRA] to permit repatriation of any child when the custodial parent residing in the country of origin requests reunification and return of the child. Currently, this is not permitted by the statute."
Subsequently, on August 23, 2019, DHS and HHS issued a final rule to terminate the Flores settlement agreement in accordance with the terms of that agreement. That rule would have established a national standard of care for the custody of children and families in "Family Residential Centers" (FRCs). Most states lack such standards, and as then-Acting DHS Secretary Kevin McAleenan explained in announcing the rule:
A national standard of care ensures that care in custody of children and families is not a policy decision, and should not be subject to the ebbs and flows of state and local politics. Instead, all children in the Government's care will be universally treated with dignity, respect, and special concern, in concert with American values and faithful to the intent of the settlement.
The facilities that will be used to temporarily house families under this rule are, appropriately, fundamentally different than the facilities where migrants are processed following apprehension or encounter. They are campus-like settings with appropriate medical, educational, recreational, dining, and private housing facilities.
The rule also would have ended Judge Gee's interpretation of the agreement requiring accompanied children (and therefore their parents and guardians) to be released after 20 days. The acting secretary explained:
Prior to the 2015 court ruling that restricted our use of the FRCs, immigration proceedings averaged less than 50 days, granting those with meritorious claims prompt relief and permission to stay in the U.S., while swiftly repatriating those meritless claims — who have comprised a substantial majority of the families being processed.
I say the rule "would have" had these effects. As I explained on September 28, 2019:
Unfortunately, but not surprisingly, Judge Dolly Gee of the U.S. District Court for the Central District of California has issued a permanent injunction preventing the Department of Homeland Security from applying or enforcing the regulations it published last month to implement the settlement agreement in Flores v. Reno.
Despite this fact, the number of aliens apprehended at the Southwest border, and in particular the number of OTMs generally, as well as the number of UACs and FMUs, have dropped dramatically since May 2019.
The decrease has been the result of diplomatic agreements that the administration has reached with partners throughout the region, as well as a number of initiatives that DHS has undertaken to quickly process aliens apprehended after illegal entry and to curb the incentives for such entry, all of which I described in a February 18 post.
By February 2020, the number of UACs apprehended at the Southwest border had dropped to 3,076 (up slightly from January, when 2,682 were stopped by the Border Patrol), and the number of FMUs to 4,610. Mexican nationals represent almost 50 percent of the migrants apprehended in FY 2020, although Mexican UACs and FMUs still trail nationals in those categories from Honduras, Guatemala, and El Salvador.
The current emergency will pass, however, and the White House travel restrictions across the Southwest border will be lifted (if they are not enjoined). The Justice Department will have to vigorously fight to overturn Judge Gee's injunction of the Flores regulations, and the immigration courts will have to get back to work to tackle the enormous backlog in removal cases.
But the president's diplomatic initiatives and administrative actions will disappear if he is not reelected — The presumptive Democratic nominee, Joe Biden wants significantly more lax immigration enforcement, to say the least (as does Bernie Sanders, who suspended his campaign yesterday).
Biden is openly hostile to the president on immigration, and has pledged a moratorium on what few deportations there are. Biden wants to codify Flores and limit detention in lieu of unproven alternatives, while Sanders had pledged to close detention centers on "Day One". Either plan would open the floodgates at the border anew.
In the interim, however, apprehensions are down, but CBP is still busy. Don't expect this situation to last long.