The Counterintuitive World of Immigration Enforcement

By Andrew R. Arthur on December 29, 2017

Certain immigration enforcement actions, which appear on their face to be unduly harsh or "cruel", are actually not only in the best interests of the United States, but also in the best interests of the aliens involved.

For example, on December 21, 2017, the Washington Post published an article on a recent proposal by the Trump administration to curb the number of family units and unaccompanied alien children (UACs) who are coming to the United States by, possibly, separating parents from their children in immigration detention. That article appeared under the headline: "To curb illegal border crossings, Trump administration weighs new measures targeting families".

Some background: The number of family unit aliens (FMUs, that is "the number of individuals (either a child under 18 years old, parent or legal guardian) apprehended with a family member by the U.S. Border Patrol") and UACs apprehended along the Southwest border by Border Patrol in FY 2017 reached a high of 23,326 in December 2016. That number decreased to 13,705 in January 2017, 8,156 in February 2017, 2,167 in March 2017, and 2,115 in April 2017, before ticking up again in May 2017, when 3,053 FMUAs and UACs were apprehended. The number slowly increased to 4,271 in June 2017, 5,870 in July 2017, and 7,618 in August 2017, before dropping slightly to 7,152 in September 2017. FY 2018, however, saw bigger increases. In October 2017, 8,007 FMUAs and UACs were apprehended by the Border Patrol, and by November 2017, the number had grown to 11,018.

Border Patrol is not the only U.S. Customs and Border Protection (CBP) component that performs operations along the Southwest border. Customs and Border Protection Officers (CBPOs) in the Office of Field Operations (OFO) at the ports of entry also encounter aliens deemed inadmissible, including FMUs and UACs. As the CBP website notes:

OFO inadmissibility metrics include: individuals encountered at ports of entry who are seeking lawful admission into the United States but are determined to be inadmissible, individuals presenting themselves to seek humanitarian protection under our laws; and individuals who withdraw an application for admission and return to their countries of origin within a short timeframe.

The number of FMUs and UACs deemed inadmissible by CBPOs in OFO followed a similar trajectory to that reported by the Border Patrol. That number decreased from 8,330 in October 2016 to 6,574 in November 2016, 4,831 in December 2016, 3,344 in January 2017, 1,319 in February 2017, and 889 in March 2017, before slowly increasing. The number of inadmissible FMUs and UACs was 919 in April 2017, 1,285 in May 2017, 1,496 in June 2017, 2,065 in July 2017, 2,705 in August 2017, and 2,865 in September 2017. That increase continued in FY 2018, when the number of FMUs and UACs deemed inadmissible was 3,836 in October 2017 and 4,327 in November 2017.

Taking these numbers together, the number of FMUs and UACs encountered by CBP on the Southwest border went from a low of 3,034 in April 2017 to 15,345 in November 2017. That is still well below the 28,157 encountered in December 2016, but the trend is, nonetheless, upward.

While there are no statistics that identify how many of the FMUs and UACs who are encountered at the Southwest border claim "credible fear", the likelihood is that a significant number, if not the majority, do. By statute, aliens who claim credible fear must be "detained pending a final determination of credible fear of persecution and, if found that they have such a fear, until removed."

Under 8 U.S.C. § 1232(b), however, UACs must be transferred within 72 hours "to the Secretary of Health and Human Services ... after determining that such child is an unaccompanied alien child," except in "exceptional circumstances". Pursuant to subsection (c) of that provision, UACs "in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child." As one observer noted in February 2015:

As a result, while UACs' immigration proceedings are pending, federal agencies typically try to place them with a relative or other sponsor. According to the Migration Policy Institute, "[n]inety percent of these children are released by ORR into the care of a parent, relative, or family friend while they await adjudication of their immigration cases, with foster care the placement for the remainder."

Critically, under 8 U.S.C. § 1232(c)(2)(A): "A child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense." Secure detention for UACs is the exception, not the rule.

In the last five years of the Obama administration, apprehensions and inadmissibles generally reached a low point in the December to January timeframe before reaching a peak in April to May, so there has always been an ebb and flow in the number of aliens encountered by CBP along the Southwest border. The increase in FMUs and UACs in recent months, however, suggests that the earlier decrease that began after the election may have been an aberration.

There are two likely reasons for the initial decrease reflected in these statistics. The first is the hortatory effect of the rhetoric of the Trump administration; aliens considering entry may have been scared off by then-candidate Trump's campaign statements. A second, linked reason is likely an ongoing assessment by the gangs who smuggle aliens across the Southwest border to see how that rhetoric would translate into action by CBP.

In particular, a Border Patrol agent told me that he believed that the gangs had been probing weaknesses along the border following the inauguration to identify the best new smuggling routes. Now that those weaknesses have been identified, he explained, the gangs are exploiting them, contributing to the recent increase.

There is one other significant factor that I believe has contributed to the recent increase: demands by politicians and others for amnesty for recipients of Deferred Action for Childhood Arrivals (DACA) and other so-called "DREAMers".

Although critics of this theory will likely argue that no alien who enters now will be able to take advantage of such an amnesty, this argument suggests both an unreasonable understanding of the current political debate in the United States by aliens contemplating entering illegally, and the personal naiveté of those critics. With respect the latter point, such an argument rests on the belief that an amnesty, once instituted, can be limited to a specific group of aliens, and that the waiver of immigration laws for one group of illegal aliens does not encourage illegal entry of a new group of illegal aliens.

As a matter of politics, amnesty discussions inevitably lead to a "race to the bottom", as congressional opportunists attempt to expand the pool of aliens who will eventually be covered. Why only aliens who entered on or before June 15, 2007? What about all the children who have entered the United States since then — don't they count, too? As a matter of logic, if a foreign national is contemplating illegal entry to the United States, and sees that this country is not serious about enforcing its laws (the inevitable conclusion from any amnesty), then that foreign national would have a greater incentive to enter illegally. In my experience, both are true, and each encourages additional illegal immigration.

In any event, the current administration is reportedly considering various options to dissuade aliens, and in particular FMUs and UACs, from entering illegally. Among the reported ideas is a plan to separate parents from their children in detention, as well as a plan "to target parents for deportation after they attempt to regain custody of their children from government shelters."

As the Washington Post explains the first idea:

The most contentious proposal — to separate families in detention — would keep adults in federal custody while sending their children to HHS shelters. This was floated in March by then-Secretary of Homeland Security John F. Kelly, who is now White House chief of staff. He told CNN at the time that the children would be "well cared for as we deal with their parents."

This proposal is necessary because, as the paper reported:

DHS has three family detention centers — two in Texas, one in Pennsylvania — with about 2,200 beds available. But legal restrictions on its ability to detain children mean that families are typically given a court date and released from detention not long after they arrive. In November, the three detention centers reached their highest occupancy levels for the year, and they remain near maximum capacity, officials said.

In that article, I explained to the author what I believe to be the logic behind the administration's decision:

"The parents that would undertake this perilous journey to the United States would be less likely to do it if they knew they would be separated from their kids."


"It might seem heartless, but it's more heartless to give them the illusion they're going to be able to enter the United States freely by hiring a smuggler to come here, because the dangers associated with smuggling along the southwest border are real".

The Post also included opinions countering mine and opposing the administration's purported proposal:

If children are forcefully separated from their mothers and fathers, or if parents know they could be arrested or targeted for trying to reunite with their children, migrant advocates say the U.S. government will be inflicting "devastating" trauma on families fleeing Central America because they feel their lives are at risk.

"These measures will only drive families who are vulnerable to exploitation further into the hands of traffickers and smugglers," said Greg Chen, director of government relations of the American Immigration Lawyers Association.

"These are families that have no other choice for their survival," he said.

With due respect to Chen, his statements are non sequiturs, at least in this context. If aliens do not believe that they will be released from detention after entering United States illegally, they will be less likely to attempt to illegal entry, and therefore less likely to trust themselves to smugglers. In this regard, it should be noted that, for a foreign national contemplating illegal entry, crossing the border alone is not an option. As ICE explained in a recent release:

Individuals seeking covert entry into the United States know they need to pay an organization for transport. Smuggling organizations, often associated with other transnational criminal organizations and able to take advantage of people in desperate circumstances, provide that transportation at a significant cost.


Human smuggling operates as a contract business; an understanding exists among transnational criminal organizations [TCOs], smugglers and individuals seeking transport that trying to cross the border independently is not an option. Smugglers escort the illegal aliens through the desert, across the border, to stash houses and onto their final destinations within the interior of the U.S. A portion of the smuggling fees paid to the transnational criminal organizations helps fuel their other criminal enterprises.

Respectfully (and counterintuitively), the administration's reported proposals are a win-win for all involved: They will reduce the economic incentive for aliens to trust their lives to smugglers in an attempt to enter the United States, and the smugglers and TCOs will lose money.

In addition, "if parents know they could be arrested or targeted for trying to reunite with their children", they are less likely to trust their children to smugglers. Hiring a smuggler to transport your son or daughter is the definition of "child endangerment", as ICE has explained:

While smugglers most often transport adult males, the number of women, children and family units seeking transport has increased dramatically in recent years. They often find themselves at risk for assault and abuse such as rape, beatings, kidnapping and robbery. Smugglers regularly overcrowd living and sleeping accommodations, and withhold food and water. In addition, individuals who are smuggled may be forced into human trafficking situations upon their arrival in the U.S. or their families may be extorted.

This is not to discount the dangers of crime in Central America. For example, in a travel warning issued on February 14, 2017, the Department of State (DOS) noted: "El Salvador has one of the highest homicide levels in the world and crimes such as extortion, assault and robbery are common." The source of that crime is clear from that DOS warning:

Gang activity is widespread in El Salvador. There are thousands of gang members operating in the country, including members of Mara Salvatrucha (MS-13) and Eighteenth Street (M18). Gangs (maras) focus on extortion, violent street crime, narcotics and arms trafficking. Muggings following ATM or bank withdrawals are common, as are armed robberies at scenic-view stops (miradores). While the majority of the violence occurs between rival gangs and there is no information to suggest U.S. citizens are specifically targeted, its pervasiveness increases the chance of being caught in the wrong place at the wrong time.

Generally, as a matter of law, "ordinary criminal activity does not rise to the level of persecution necessary to establish eligibility for asylum." Moreover, recruitment, without more, usually does not constitute "persecution" for asylum purposes. In light of these facts, it is unlikely that adults and youths fleeing gang violence would, at the end of the day, be eligible for asylum.

This is not to say that the Trump administration has ignored the gang problem in Central America, or its effects on the population there. In fact, it is going after the gangs at their roots, and is taking action to cut off the flow of money on which they depend in their home countries.

For example, in April 2017, Attorney General Jeff Sessions announced that the Department of Justice (DOJ) would "crack down on violent gangs", including MS-13. Notably, the department's press release on that effort described how gang leaders in El Salvador direct MS-13 operations in the United States, and how the gang's ill-gotten revenues here are funneled back to support its criminal deeds in that country:

Recent investigations in some regions of the country have revealed that major leaders of MS-13 in El Salvador, many of whom are in prison there for murder, kidnapping or extortion, have been sending representatives to cross into the U.S. illegally, to gain control of local MS-13 cliques and reconstitute them. These emissaries then connect the local MS-13 cliques to their jailed leaders in El Salvador by cell phone. The gang leaders in El Salvador then institute what MS-13 has been calling "The Program", or "La Programma," in which they direct the American MS-13 cliques to become more violent to control territory. They are attempting to accomplish this goal not only by killing rivals, but also by extorting legitimate businesses run by legal Central American immigrants and illegal businesses such as prostitution and gambling. The leaders demand that the local, U.S.-based MS-13 clique send a portion of the resultant profits to the leadership in El Salvador to enrich the gang and expand its activities.

Subsequently, in October 2017, Sessions "authorized federal prosecutors to investigate members of the international MS-13 gang with all lawful tools." Specifically, he:

[H]as designated MS-13 as a priority for the Organized Crime Drug Enforcement Task Force, which brings together prosecutors from the Department of Justice with investigators from the Drug Enforcement Administration (DEA), the FBI, the IRS, Postal Service Inspectors and the Coast Guard. The attorney general said this designation will allow investigators to pursue drug cartels and drug traffickers "at the highest level."

DOJ has also announced it is working with the attorneys general of El Salvador, Honduras, and Guatemala to target the gang.

Dismantling the criminal organizations that have caused so much disruption to the peoples and societies of those three countries is a much more effective, and compassionate, policy than one that would simply open the doors of America to the nationals of each, assuming that they are able to make the perilous journey required to reach this country's borders. It would enable those countries to rebuild their economies and their civil societies, and to protect the lives and livelihoods of their citizens effectively. And this is to say nothing about the costs in money and blood that such a policy would save on the southern side of the U.S. border, by denying the smugglers and TCOs the opportunity to trade in human lives, as I have detailed previously.

Again, the administration has not announced that it plans to implement the detention proposals that have been reported by the Washington Post. If it were to do so, however, it would likely spare from suffering the very aliens whom it would, at first blush, be most adversely affecting. Such is the counterintuitive world of immigration enforcement.