Cartels and Smugglers Understand Immigration Policy Better than the Administration

WaPo releases early border data, showing an inevitable migrant family surge

By Andrew R. Arthur on September 5, 2023

On August 31, the Washington Post — which seemingly has earlier access to CBP data than voters do — released preliminary statistics on illegal crossings last month at the U.S.-Mexico line. CBP usually drops those numbers around the 15th of the month, except when they’re bad, a common occurrence of late. Expect yet another late-night dump of official border stats this month, because according to the paper, Border Patrol apprehensions at the Southwest border surged in August, exceeding 177,000 — a 33 percent increase over July, itself a 33 percent increase over June. The authors of that piece say a lot, but what’s unsaid is that the cartels and smugglers understand immigration policy and its implications better than the Biden administration, particularly as it relates to illegal family migrants.

Biden vs. Every Prior Administration at the Border. The headline of that article is “Families crossing U.S. border illegally reached all-time high in August”, and credit goes to the authors — Nick Miroff and Maria Sacchetti, two of the best immigration reporters in the business — for putting that critical fact front and center. To be honest, everything else that’s going on at the border flows from the family surge, which is a harbinger of a rough fall at the Southwest border.

Let me explain. Prior to FY 2013, few adult migrants were stupid (or callous) enough to bring a child with them when entering the United States illegally. The border between the ports is no place for a kid, and as I’ll explain below, the border is likely the safest part of the journey.

In FY 2013, however, DHS started to track a new phenomenon: smugglers encouraging adults to bring a child with them when entering illegally, because entering in this manner increases the likelihood that the adults will be released.

Border enforcement is presented as a “Trump vs. Biden” dichotomy of late, but that is a canard. The real contrast is “Biden vs. every prior administration”, and nothing demonstrates that better than the fact that, in FY 2013, the Obama administration detained 82 percent of all aliens CBP encountered at the Southwest border, from the moment of encounter until those migrants were granted asylum or, more often, removed.

An additional 9 percent of those migrants were detained for at least part of that process, while just 9 percent were never detained. It’s not that Barack Obama had it in for border migrants, it’s just that the Immigration and Nationality Act (INA) mandates that those migrants be detained, and because detention is the best way to deter future entrants.

The Biden administration steadfastly opposes migrant detention, however, and instead has opted to release nearly every illegal Southwest border migrant who wasn’t expelled under Title 42. While CBP under Biden is actively hiding its migrant release totals, at least 2,289,990 illegal migrants encountered by CBP at the Southwest border have been released into the United States since he took office, nearly all in violation of law.

In March, a federal judge determined that the reason why a record number of migrants have entered the United States illegally since Joe Biden took office is that his administration refuses to detain them.

Obama, “Family Units”, and Flores. Respectfully, that’s just common sense: The near certainty that migrants stopped by CBP at the border will be released into the United States — where they can live and work indefinitely (if not forever) — under this administration is plainly driving the border disaster. Anyone who disputes this fact is either stupid, misinformed, or so blinded by ideology that their assessment can’t be trusted.

One man who was neither stupid, misinformed, or blinded by ideology about the reality at the border was President Obama. As proof, consider FY 2014, when he was faced with a surge of more than 68,000 adult migrants entering illegally with children at the Southwest border in so-called “family units” (FMUs).

In response, his administration launched a massive PR campaign across Central America to deter families from coming illegally, and most importantly opened detention centers to hold those FMUs. Border Patrol FMU apprehensions quickly dropped, falling 86 percent between June and September 2014.

It wouldn’t last, however, because those FMU detentions in turn spurred immigrants’ advocates to action. Which brings me to the 1997 settlement agreement in Flores v. Reno.

That Flores settlement agreement (FSA) created a policy favoring release of minors and required the then-Immigration and Naturalization Service (“INS”, precursor to CBP in border enforcement) to place minors it did detain in the “least restrictive setting appropriate” based on their age and special needs "in a licensed facility".

Prior to 2014, the FSA was interpreted to apply only to unaccompanied alien minors, not to kids who came to this country with their parents or other adults. The Flores plaintiffs, however, argued that Obama’s FMU detentions violated the FSA, and in August 2015, the federal district court judge assigned to oversee the agreement, Dolly Gee, concurred.

She ordered the Obama administration to release both the adults and the children in FMUs within a wholly arbitrary 20-day period, and although the Ninth Circuit later narrowed that release mandate to only the children in those family units, nearly all aliens entering in FMUs since have been released within 20 days, to avoid “family separation”.

Consequently, FMU entries surged, nearly doubling between FY 2015 (when Border Patrol apprehended fewer than 40,000 family-unit migrants) and FY 2016 (when FMU apprehensions at the Southwest border exceeded 77,000).

The Trump “Border Emergency” of FY 2019. Donald Trump entered office in January 2017 promising to control the border, which drove illegal entries down, for a while.

By FY 2019, however, Border Patrol apprehensions at the Southwest border surged again, more than doubling from the prior fiscal year and ultimately topping 851,000 — nearly 56 percent of whom entered in family units.

That prompted then-DHS Secretary Kirstjen Nielsen to announce a “border emergency” in late March 2019, warning “the American people that we face a cascading crisis at our southern border”, with a system “in freefall”. As she explained:

In the past, the majority of migration flows were single adults who could move through our immigration system quickly and be returned to their home countries if they had no legal right to stay. Now we are seeing a flood of families and unaccompanied children, who — because of outdated laws and misguided court decisions — cannot receive efficient adjudication and, in most cases, will never be removed from the United States even if they are here unlawfully. The result is a massive “pull factor” to our country.

The Homeland Security Advisory Council pulled together a bipartisan panel of high-level experts to examine this family and child migrant crisis. In April 2019, it felt pressed to issue a “Final Emergency Interim Report”, largely concurring with Nielsen’s assessments and concluding:

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).

“NTA” there refers to the “Notice to Appear”, the charging document DHS uses to place aliens into removal proceedings. As I have explained elsewhere, the Biden administration hasn’t even gone as far as to issue NTAs to hundreds of thousands of border migrants, instead simply cutting them loose to report for their charging documents from ICE in the interior (which has worked about as well as you’d expect).

The greatest harms of this FMU disaster, the panel concluded, fell upon the migrants themselves, and especially the kids:

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.

“Remain in Mexico” and Biden’s Reversals. You might think that this or any other administration would be interested in keeping migrant children from being traumatized, migrant women from being raped, and money out of the pockets of drug cartels. If so — in the present case, at least — you’d be wrong.

That panel, among other things, called on Congress to fix Flores, close that 20-day release loophole, and expand FMU detention. When Congress failed to act, however, Trump implemented the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, under which illegal entrants — including those in FMUs — were sent back across the border to await their asylum hearings.

Remain in Mexico worked, and in an October 2019 assessment of the program, DHS concluded that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien families. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.

Biden quickly suspended and then ended MPP, however, and the results were predictable. FMU apprehensions at the Southwest border increased more than eight-fold between FY 2020 (52,230) and FY 2021 (451,087), reaching nearly 483,000 by FY 2022.

A big reason for that jump in family entries was the Mexican government’s increasing refusal to accept the return of non-Mexican families who were expelled under Title 42. That said, President Biden apparently never pressed the issue and his DHS failed to repatriate expelled “other than Mexican” FMUs.

The “CLAP Rule” FMU Catch. Of course, Title 42 ended on May 11, and as my colleague Todd Bensman reported in early June, the FMU rush into the United States quickly began. According to the Post, “at least” 91,000 of the migrants who entered illegally in August were in family units, eclipsing the prior FMU apprehension record at the Southwest border, which was set in May 2019 (84,486), before MPP was fully implemented.

Why are so many family migrants entering now? Well, the Biden administration does deserve some credit for implementing a “rebuttable presumption” that aliens who cross the border illegally without going through the Southwest ports are ineligible for asylum as part of its May 16 “Circumvention of Lawful Pathways” (CLAP) rule.

There’s not much else that is good in that rule, as the Center has explained, but among the factors that would rebut the presumption of asylum ineligibility is that “at the time of entry, the [alien] or a member of the [alien’s] family had an acute medical emergency; [or] faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder”.

As that bipartisan panel of experts explained back in April 2019, the odds family migrants would suffer a medical emergency or face the threat of criminal violence (or would have suffered such violence already) are extremely high. Smugglers haven’t become better people in the interim, and this exception simply encourages adult migrants to expose themselves and their children to such dangers to avoid removal.

More saliently, however, as my colleague Elizabeth Jacobs noted when an advance copy of that plan was published, the CLAP rule includes a specific catch that:

allows families to circumvent application of the presumption against asylum eligibility if one family member is able to establish eligibility for withholding of removal under 241(b)(3) of the Immigration and Nationality Act (INA) (covering persecution claims) or under 8 C.F.R. 1208.16(c)(2) (covering torture claims).

With due respect to Jacobs, that may sound like legal gobbledygook to the uninitiated (it makes perfect sense to me, though I’ve been doing this for three decades-plus), but the smugglers and the cartels understand it just fine: Send an adult migrant and a kid across the border illegally, and they aren’t coming back.

Jacobs identified this vulnerability in the CLAP rule five days before it was formally published, and yet nobody involved in drafting this plan apparently realized that a surge in migrant families would be the inevitable result. Perhaps, in much the same way that big tech companies hire hackers to find the backdoors into their computer systems, the Biden administration could find a “white hat smuggler” to flyspeck its future immigration proposals for loopholes.

Neither that, nor anything else that has happened at the Southwest border in the past 31 months should surprise any objective border expert. Not to give myself too much credit, but I called most of this a year before President Biden took office — I just underestimated his ability to screw the border up this bad.

Would-be illegal migrants, like all reasonable people, respond to incentives and deterrents. Few reasonable people are apparently crafting border policy in the Biden White House, which is why they fail to recognize the patently obvious deleterious implications of their plans. Maybe they should ask the smugglers and the cartels — they understand the policies just fine and know where the loopholes are.