Yesterday I discussed a notice of proposed rulemaking (NPRM) on "Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children". As I explained, if adopted, the regulations therein would make it easier for the Department of Homeland Security (DHS) to maintain custody of family units, that is, parents or guardians entering illegally with children. The most recent statistics from U.S. Customs and Border Protection (CBP) explain why that rule is so necessary.
Every month, CBP publishes "Southwest Border Apprehensions", which provides a monthly total of aliens apprehended entering the United States illegally, or deemed inadmissible at the ports of entry along the Southwest border. In July 2018, 9,247 aliens traveling in family units were apprehended along that border. As my colleague Preston Huennekens has reported, One month later, that number jumped to 12,774, a 38-percent increase in just 31 days.
The Wall Street Journal reported that: "Total family apprehensions since October, the beginning of the federal fiscal year, is already higher than for any complete prior fiscal year for which data is available." It quoted CBP Commissioner Kevin McAleenan, who asserted that the increase was a "very direct response to the vulnerabilities" in the immigration laws. Summarizing McAleenan's statements, the paper reported "the government has little ability to deter immigrant families and children traveling alone from crossing the border illegally." Specifically, McAleenan stated:
There are no consequences to being apprehended, in fact they are seeking to be apprehended to start their processing of being allowed into the country and start their court process. ... It is a crisis of significant proportion.
The Journal noted that the president has been "struggling to curb the flow of illegal border crossers, particularly families, in recent months."
A key element of the administration's attempts to curb that flow was in its "zero-tolerance" policy for prosecuting aliens who have entered the United States illegally under section 275 (a) of the Immigration and Nationality Act (INA). That policy, which resulted in the separation of parents and children, had to be abandoned after a public backlash.
I explained in a July 2018 post, this section of the INA does not provide an exception for prosecution of aliens who enter the United States with children, but DHS and the Department of Justice (DOJ) traditionally did not prosecute such aliens as a matter of policy. That was reversed on April 6, 2018, when Attorney General Jeff Sessions announced a "Zero-Tolerance Policy for Criminal Illegal Entry".
This set up the public talking point that the president was "separating families" (as Vox put it in June 2018), because if parents were referred for criminal prosecution for illegal entry they went into the custody of the U.S. Marshals Service, as I detailed in that July 2018 post. This resulted in the children being referred to the Department of Health and Human Services (HHS) as "unaccompanied alien children" (UACs) under the Trafficking Victims Protection Reauthorization Act of 2008. To address this backlash, the president issued his June 20, 2018, executive order "Affording Congress an Opportunity to Address Family Separation", which ended family separations.
In addition, as I reported in a June 2018 post captioned "District Court Sets Up Catch and Release Dilemma":
On June 26, 2018, Judge Dana Sabraw of the United States District Court for the Southern District of California issued an order granting plaintiffs' motion for classwide preliminary injunction in Ms. L v. ICE. In that order, he enjoined the government from detaining members of that class [parents] without their children, subject to limited exceptions.
While that order did not address parents subject to the president's executive order, the damage had been done.
Moreover, as I have previously explained, the so-called Flores settlement agreement, as interpreted by the Court of Appeals for the Ninth Circuit in 2016, bars DHS from detaining accompanied and unaccompanied alien children for more than 20 days. While Judge Sabraw issued a subsequent order in August 2018 that gave class members the option of asserting their children's rights under Flores or opting to keep their children with them in DHS detention, it seems to have had little effect, likely because of the lack of adequate detention space for families.
This is why the regulations proposed in the NPRM are so important, for reasons that I set forth in my post "DHS Proposes Rules on Custody of Alien Minors". Specifically:
Under the Flores settlement agreement, the government must transfer minors to a "non-secure" and "licensed program", and do so "as expeditiously as possible". Paragraph six of that agreement defines the term "licensed program" as:
[A]ny program, agency or organization that is licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children, including a program operating group homes, foster homes, or facilities for special needs minors.
As the NPRM states:
That prompted significant and ongoing litigation regarding the ability to obtain state licensing of FRCs [holding family units], as many States did not have, and have not succeeded in putting in place, licensing schemes governing facilities that hold family units together. That litigation severely limited the ability to maintain detention of families together.
As long as the licensing must come from a state specifically (rather than from the federal government), DHS's ability to effectively use family detention is limited. A federal program (especially immigration enforcement) that the Constitution and Congress commit to federal discretion should not depend on state licensing, particularly when a well-established state licensing scheme does not already exist.
In order to avoid separating family units, DHS needs to release adult family members in cases where detention would otherwise be mandatory and DHS determines parole is not appropriate, or in cases where DHS and/or immigration courts believe detention of the parent is needed to ensure appearance at future removal proceedings or to prevent danger to the community. Because of ongoing litigation concerning state licensure for FRCs, ICE rarely is able to hold family units for longer than approximately 20 days. The result is that many families are released in the interior of the United States.
The NPRM notes that "a significant number of aliens" who are not detained fail to appear for removal proceedings or don't seek asylum, "thus remaining illegally in the United States."
To address these issues, the proposed rule allows families to be detained together in federally licensed programs, instead of just facilities licensed by a specific state. Logically, there are few state licensing schemes for FRCs, because states don't have criminal detention facilities for families, only individuals.
Keeping family units in custody is crucial to the enforcement of the immigration laws along the border, because it deters their entry. This is not simply an issue of the administration attempting to limit the number of aliens who are seeking to enter illegally. Rather, it is both a security issue and a humanitarian issue as it relates to those family units, as I explained in a July 2018 post captioned "CBP Rescues Aliens from Smugglers".
To summarize, the apprehension of alien family units places a strain on the limited number of Border Patrol agents who are keeping watch on the 1,900-plus-mile border with Mexico every day. Numerous agents must be pulled off the line to process those aliens, which provides an opportunity for smugglers to move other aliens, drugs, and contraband across the border.
On the humanitarian front, the smugglers who move those family units across the border are rapacious, in the truest sense of the word. They rape, rob, murder, and abandon their "customers" when they get the opportunity, or when it is advantageous to their illicit business. Women and minors are at particular risk of sexual assault and abandonment, as I explained in that post.
I have no doubt of the good intentions of the various judges, legislators, fellow pundits, and media outlets who have promoted the policies that have led to the 38-percent increase in the number of aliens in family units who were apprehended at the Southwest border in August 2018. It is critical that they, and the public at large, understand the full consequences of those policies. However, I don't see that happening anytime soon.