Emergency Interim Report from CBP Families and Children Care Panel

First thoughts: Good proposals, but no plan

By Andrew R. Arthur on April 24, 2019

On April 16, 2019, the Homeland Security Advisory Council's CBP Families and Children Care Panel issued a "Final Emergency Interim Report". Many of the findings, and the proposals, in that report echo statements that the Center and I have been making for years. Needless to say, those specific findings and proposals are (by my estimation) good ones. Some of those proposals are not so good, however. Most critically, though, is the fact that the panel doesn't appear to have a plan to bring those good proposals to fruition.

By way of background, as that report notes:

By letter of October 4, 2018, then Department of Homeland Security (DHS) Secretary Kirstjen Nielsen asked the Homeland Security Advisory Council (HSAC) to examine the care of families and children in the temporary custody of [U.S. Customs and Border Protection (CBP)], including its component division, the [U.S. Border Patrol (USBP)].

The HSAC created a CBP Family and Child Custody Panel (hereafter the "Panel") as a subcommittee of the HSAC to "provide findings and recommendations on the best practices of other federal, state and local organizations regarding care for families and children in CBP custody."

Due to the rapidly deteriorating situation at the Southwest border, the panel decided to issue an interim report, "believ[ing] it a matter of great urgency to provide the secretary with ... emergency recommendations for immediate action without further delay."

Many of the findings contained in that report are extremely useful, and many mirror findings my colleagues and I have made in recent months. I will discuss those further in later posts.

As noted, I also believe there is great merit in certain of the proposals that the panel has made. Some of those proposals are not feasible in the timeframe that the panel advises, however, and certain of them require political will on the part of Congress, which has been lacking, even as the law-enforcement and humanitarian situation at the border has become direr. And then, there are the courts.

In particular, the panel states that "Congress Should Enact Emergency Legislation" that would:

Achieve Faster Asylum Processing. At a minimum, legislation is needed to modify asylum procedures, at least temporarily, so that a hearing and decision can be provided to family members within 20 or 30 days. We also are recommending that Congress immediately fund a substantial increase in immigration judges.

"Flores Fix" — Roll back the Flores Decision by exempting children accompanied by a parent or relative, who is acting as the guardian of the child. DHS also should be given discretion to detain a close relative with a non-parent family member when this is in the best interest of the child.

Amend Section 208 of the Immigration Nationality Act[] (INA) to require that border crossers make asylum claims at POEs. Simultaneously, CBP will be resourced to begin processing all asylum claims initially presented at a POE and put an end to metering. ...

Amend the Trafficking Victims Protection Reauthorization Act (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.

First, as a general matter, Congress (and in particular the Democratic-led House of Representatives) has not shown any interest in taking any legislative steps in response to the unfolding disaster at the border.

In fact, provisions in the recently passed bill that funds DHS through FY 2019, as my colleague Jessica Vaughan has explained, "make the border crisis even worse by amplifying incentives for illegal immigration." In particular, that law "increases funding for the resettlement of newly arrived family illegal immigrants, and kids as well, and increases what they call 'alternatives to detention' [ATD], which is basically catch-and-release with a monitor and with a check-in." It also "slashes the number of ICE detention beds and instead expands ATD participants from 82,000 to 100,000. The truth is, in the immigration context, the only alternative to detention is fugitives — people who skip out on their proceedings."

The appropriations language also prevents the Department of Health and Human Services (HHS), which has jurisdiction over the placement of unaccompanied alien children (UAC), from sharing information about the "sponsors" of those UACs (that is, the family members or friends with whom the UACs are placed in the United States) with DHS, thus preventing DHS from initiating removal proceedings against removable sponsors. I discussed this provision at length in a February 2019 post captioned "The Worst Provision in the Funding Bill: Think about the children". Enough said.

In short, House Democrats have not shown any inclination to take steps to stop the flow of family units and UACs that are currently overwhelming our immigration authorities along the border. There is no reason to believe that they will start now.

This is especially true as it relates to the areas in which the panel states that immediate legislative action is needed. Asylum reform? This is not a topic that has received Democratic support in decades.

Flores fix? It is difficult to think, particularly in light of the restrictions contained in the FY 2019 DHS appropriations bill on detention noted above, that any congressional Democrat would vote for a proposal that would narrow that outdated settlement agreement in any way, unless Speaker of the House Nancy Pelosi saw that it was in the political interest of her party to do so. And then, if she did, I would expect to see a challenge to her speakership from the more radical branches of her caucus (which appear in many ways to run the party now).

Amending the TVPRA? Key House Democrats (including current Chairwoman of the House Judiciary Committee's Immigration and Citizenship Subcommittee Zoe Lofgren) were sponsors of the bill. Lofgren is a former immigration lawyer, and had to know the inevitable consequences of that legislation. What are the chances that her subcommittee will make the changes to that law that the panel proposes? Unless forced by Committee on the Judiciary Chairman Jerry Nadler, I cannot even imagine her scheduling a mark-up of a bill that would do so.

Keep in mind generally that Bennie Thompson (D–Miss.), chairman of the House Homeland Security Committee, told ABC's "This Week" on April 14, 2019, that President Trump had "manufactured chaos" with his immigration policies at the border: "Before Donald Trump took office, we had a situation that was manageable. ... We had spikes, but it also went down, but what we have now is a constant pushing of the system so that it doesn't work."

Given the fact that congressional Democrats are talking about impeaching the president, what possible hope could there be that they would, even incidentally, help him by responding to the disaster at the border? To ask the question is to answer it.

Not all of the panel's recommendations require legislative action, however. It also calls for two specific regulatory actions:

Enable CBP to take photographs and biometrics of children of any age in order to stem the recycling of children at the border and to rapidly determine the legitimacy of parentage claims.

Because the expansion of Flores is contributing to the flow of accompanied children, many who are of tender age, DHS should act promptly to limit it by emergency regulation until Congress acts on [a Flores fix].

The first recommendation is so simple that it requires explanation. The regulation governing the examination of aliens for admission to the United States, 8 C.F.R. § 235.1, requires DHS to take biometrics from most applicants for admission (including aliens who have entered illegally). Among those exempted are "[a]liens younger than 14". The reasons are not clear for the age restriction, but the regulation dates back years to the implementation of the US-VISIT program.

One would normally expect that a regulatory fix that would prevent exploitation of minors would receive overwhelming bipartisan support. When it comes to alien minors along the border, however, I would not be so sure, as any steps that the Trump administration takes with respect to immigration are viewed in certain quarters (especially the media) with suspicion. And I can imagine that there are civil liberties advocates who would oppose any expansion of the biometric admission requirement.

Further, I noted that CBP's inability to take biometrics from minors at the border was a significant vulnerability more than two months ago. I discovered that this was an issue by talking to USBP agents along the border, who suggested that it been a problem for some time. It does not appear that then-CBP Director (now Acting Homeland Security Secretary) Kevin McAleenan or then-Homeland Security Secretary Kirstjen Nielsen was aware of it, however, because there were no proposed regulatory fixes to the problem up to that point, or since. Anyone who thinks government is a well-oiled machine has never seen it in person.

Moreover, the idea of a regulatory Flores fix is not new; one has been pending since September 7, 2018, as I noted in a post shortly thereafter. The executive branch needs to dedicate the resources needed to get that regulation out the door.

Not that this would be the end of it, however, because I have no doubt that some entity would seek to enjoin the resulting regulation before some sympathetic district court judge (more likely than not in the Northern District of California), and that said judge would find that not only did such an entity meet the otherwise stringent standards for standing, but that the otherwise stringent standards for a preliminary injunction had also been met. And that the regulation would be subject to nationwide injunction pending years of litigation.

One final point. Even if Congress were to immediately fund a substantial increase in immigration judges, as the panel proposes, substantially increasing the number of immigration judges (the panel specifically recommends an additional 300) in less than a year would be impossible. A strong economy means a tight labor market, and that applies to lawyers as much as, if not more than, other occupations. Immigration judge pay is good, and I thoroughly enjoyed the job, but finding qualified candidates to take the job is going to take time.

For example, the Government Accountability Office (GAO) reported in June 2017 that it took an average of 742 days to hire new immigration judges between 2011 and August 2016. Although the Department of Justice (DOJ) has significantly streamlined the hiring process to reduce the time that it takes to hire an immigration judge by 74 percent since 2017, it will still take a while to increase the number of immigration judges by 42 percent over the current workforce of approximately 420 immigration judges.

Further, hiring 300 additional immigration judges (assuming that there is a concomitant increase in the number of court staff and funding for additional courtrooms) would likely mean hiring a significant number of DHS trial attorneys who are now arguing removal cases. They would have to be replaced, as well, by other lawyers without their experience.

The panel did suggest that: "To assist in ramping up the number of additional immigration judges, consideration should be given to establishing a reserve corps of retired immigration judges willing to serve in a temporary duty capacity." The Washington Post reported in November 2017 that DOJ would be "tapping retired judges to fill" courtrooms of immigration judges on alternative work schedules, but there has not been any data on the effectiveness of those efforts.

Regardless, it will take even longer for any new immigration judges to be competent to handle the complex asylum issues that many of the UACs and family units are presenting. As an aside, I would note that not a single immigration judge was on the panel, nor did the panel interview any former or current immigration judges (although it interviewed 109 other witnesses).

There are a lot of good proposals within the panel's report, but without a plan to implement them, they will remain just that: good proposals.