In May 2018, I wrote a Backgrounder captioned "Catch and Release Escape Hatches: Loopholes that encourage illegal entry", which explained how three different "laws" (the expedited removal process and its low credible fear standard, court orders interpreting the Flores settlement agreement, and the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA)) had created loopholes that encouraged foreign nationals to enter the United States illegally. There is a new loophole from an unexpected source: Covid-19.
How we got to this point requires explanation.
At the outbreak of the Covid-19 pandemic on March 20, 2020, the Trump administration announced that it had reached a "mutual agreement" with Mexico to restrict all "non-essential travel" across the Southwest border in response to the pandemic, as I explained in a post the next day.
These restrictions included all aliens who entered illegally or who lacked entry documents, who were to be quickly expelled back across the border. Such expulsions were required by an order issued by the director of the CDC under 42 U.S.C. §§ 265 and 268 (collectively known as "Title 42").
Title 42 permits the CDC "to prohibit, in whole or in part, the introduction of persons and property" from places where a communicable disease is known to exist, to prevent its introduction into the United States. The order applied to both the northern and southwest border, but as a practical matter, few migrants enter illegally along the northern border.
Such expulsions require the agreement of the Government of Mexico to take back nationals of countries other than Mexico ("OTMs"; Mexico is required to take back its own nationals), and for a long time, it did across the board.
That CDC order was expanded on May 19, and has been renewed ever since.
Of course, by March 20, Covid-19 was already raging in the United States, so why was such an order required?
U.S. citizens, green card holders, and other foreign nationals travelling to the United States on essential business with documents permitting their entry have only brief contact with CBP officers at the ports of entry. You have likely experienced this if you have returned to the United States from abroad. You fly into an airport, hand your passport to the CBP officer at a booth, and are allowed to quickly leave.
Aliens who enter illegally and are apprehended by the Border Patrol and those who show up at the ports without proper documents must be detained for processing. That can be a lengthy process, in the case of OTMs apprehended by the Border Patrol lasting an average of 78.5 hours, as I explained in an August 2019 post.
Ports of entry and Border Patrol processing centers are not built to handle large numbers of aliens for any extended period of time. CDC wanted to prevent aliens congregating at the ports and those processing centers for long periods for a simple reason: Those aliens could be infected by the coronavirus, which they could then spread to others, including Border Patrol agents and CBP officers at the ports. That is why they were to be quickly expelled — in order to prevent exposure to and the spread of Covid-19.
That system worked well: In FY 2020, 197,043 aliens were expelled back across the southwest border under Title 42, and the number of CBP "encounters" by Border Patrol agents and CBP officers at that border fell from 977,509 in FY 2019 to 458,088 in FY 2020.
Of course, as noted, Title 42 requires the acquiescence and assistance of the Mexican government to take OTMs back. That is why it is quickly becoming a loophole for a very specific group of travelers.
The Washington Post reported on February 3 that Mexico has stopped accepting Central American OTMs who are travelling in "family units" or "FMUs" — that is adult migrants with children — at heavily transited spots along the border.
In November, according to the Post, the Mexican government passed a new law that bars children and FMUs from being held in immigration detention facilities on its side of the border.
Instead, as the Wall Street Journal explained on February 4, those aliens must be sent to shelters run by the government's Sistema Nacional para el Desarrollo Integral de la Familia (National System for Integral Family Development or DIF).
That has strained DIF's capacity to hold those OTM FMUs in certain areas on the Mexican side of the southwest border, specifically areas adjacent to south Texas that are heavily transited by OTMs because they are geographically closer to Central America than west Texas, New Mexico, Arizona, and California.
On the U.S. side, those sections of the border fall under the responsibility of the Rio Grande and Del Rio Border Patrol sectors.
The DIF shelters are subject to pandemic limits as well, and they simply cannot take any more OTM FMUs. So Mexico is not accepting OTM FMUs from portions of the Rio Grande and Del Rio Sectors.
As a consequence, and because CBP does not have the capability to hold large numbers of FMUs (and due to the pandemic, it cannot hold them for long), those FMUs are now simply being processed by CBP and released to shelters in the United States for passage into the interior.
Did I mention that CBP does not screen those who are released for Covid-19? The Post reports that local officials in south Texas are concerned that those migrants could be carrying — and therefore could spread — the disease in an area that is already devastated by it, and that Texas emergency management officials have therefore sent testing kits to the shelters on this side of the border.
That does not mean, however, that migrants will not be released without being tested, and it is unclear how the shelters are dealing with migrants who test positive. CBP usually sends migrants with Covid-19 symptoms to local hospitals, but the reporting does not reveal if the shelters are doing the same.
And, of course, those South Texas shelters are reaching capacity. The Biden administration is apparently working with the Mexican government to increase DIF's shelter capacity, and is coordinating to release FMUs through ICE, which does have the ability to do Covid-19 testing.
It does not appear that the administration is planning on detaining those FMUs in ICE Family Residential Centers, but as a result of the Flores Settlement Agreement, ICE could not hold those FMUs for more than 20 days (for reasons I will explain below), anyway.
At least in the short run, all of this means that OTM FMUs apprehended at sections of the southwest border and certain ports are being released into the United States with little more than a Notice to Appear (NTA, the charging document in removal proceedings), and a court date for a hearing that could occur quite a while in the future.
We have seen all this before. During the southwest border migrant crisis of FY 2019, when hundreds of thousands of OTM FMUs were apprehended by Border Patrol, large numbers of those FMUs were released into the United States, again with an NTA and a future court date, as I reported in May 2019.
A bipartisan federal panel in April 2019 determined that such releases were the "major 'pull factor'" encouraging other OTM FMUs to enter the United States illegally, a problem exacerbated by the Flores Agreement.
Flores dates back to 1997, and originally applied to the conditions under which unaccompanied alien children (UACs) would be detained by the then-INS and released. In 2016, the Ninth Circuit held that it also applied to children in FMUs, and mandated that those children be released within 20 days. To avoid family separation, the parents in those FMUs were released, as well.
As a consequence, the panel found, in many cases "children [were] being used as pawns by adult migrants and criminal smuggling organizations solely to gain entry into the United States". It recommended that Congress roll back Flores by exempting children travelling with parents and guardians. Congress did nothing in response.
Its report noted that the children in those FMUs were severely traumatized by the journey to the United States, and their parents also faced significant harm during the trek. In addition, it found CBP's capacity was being stretched thin by the deluge, and 40 percent of Border Patrol's resources were being drawn off to respond to those migrants, preventing it from accomplishing its other missions (like preventing drug smuggling and human trafficking).
This looks like it will all play out again, as a new loophole for OTM FMUs to enter and remain in the United States has opened from an unexpected source: Covid-19.