U.S. Customs and Border Protection (CBP) has released its final number of apprehensions for FY 2019. It was a mix of bad and good news. Long story short: There was significant improvement, no thanks to a sanctimonious Congress that was more interested in cheap photo-ops and tendentious statements than in actually improving the lives of the migrants they claimed to be helping, or to district court judges who have attempted to block responsible executive proposals.
CBP reported that 977,509 individuals were encountered attempting to cross the Southwest border. This was a 72 percent increase over FY 2014, which would suggest to an objective observer that there are significant issues that need to be addressed. Those numbers are on the decline, as described below, but many of those issues remain.
The question is whether those issues are internal (that is, loopholes and other deficiencies in U.S. law that need to be addressed), external (conditions in the countries of nationality of the migrants encountered), or some combination of the two. That question was actually answered by a bipartisan panel in April 2019, and by research from the Center itself.
The majority of the migrants encountered in FY 2019 came from the three countries referred to as the Northern Triangle of Central America: El Salvador, Guatemala, and Honduras. As my former colleague Matt Sussis found in August 2019:
Since 2011, murder rates have fallen in half in Northern Triangle countries, indicating that gang violence is likely not a driver of the crisis. Similarly, despite concerns over climate change, crop production in Central America has steadily risen in recent decades.
The decline in violence was reaffirmed by my own research in October, summed up in its headline: "El Salvador, Battling Corruption, Sees Murder Rate Drop by Half". New President Nayib Bukele, who was inaugurated in June, made clear that he understands where the responsibility for improving life in that country lies: "Whose job is it to fix El Salvador? It's El Salvador's job, right? So, we have [taken] the problem as our own."
In April, the Homeland Security Advisory Council's CBP Families and Children Care Panel issued a "Final Emergency Interim Report" that focused on the pull factors in the United States that are encouraging would-be migrants to undertake the perilous journey to the United States, subjecting their own children to significant harm:
After being held for several days at inadequate and overcrowded holding areas at [U.S. Border Patrol (USBP)] stations, most of the adults — provided they have a child with them and have stated that they fear returning to their country of origin — are issued Notices to Appear (NTA) at a later time before an immigration judge somewhere in the U.S. and then dropped at a local bus station or delivered to already overwhelmed non-profit shelters. The NTA, combined with long delays in the adjudication of asylum claims, means that these migrants are guaranteed several years of living (and in most cases working) in the U.S. Even if the asylum hearing and appeals ultimately go against the migrant, he or she still has the practical option of simply remaining in the U.S. illegally, where the odds of being caught and removed remain very low. A consequence of this broken system, driven by grossly inadequate detention space for family units and a shortage of transportation resources, is a massive increase in illegal crossings of our borders, almost entirely driven by the increase in [family unit (FMU)] migration from Central America.
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). After being given NTAs, we estimate that 15% or less of FMU will likely be granted asylum. The current time to process an asylum claim for anyone who is not detained is over two years, not counting appeals.
The panel stated 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.
Not only did Congress (and in particular congressional Democrats) not undertake the proposed legislation, our elected officials on Capitol Hill did exactly the opposite: they blamed the administration and in particular CBP for the actions that they did take to respond to the humanitarian disaster at the border, and then provided sufficient funding for DHS to handle the increased flow of migrants only when they were facing a PR disaster of their own.
Worse (if that's possible), members of Congress put their own spin on tragic pictures from the border to bolster their own (erroneous) conclusions, rather than implement the commonsense legislative fixes recommended by the bipartisan panel. Worse still, they compared immigration detention to concentration camps, described CBP as a "rogue agenc[y]", called for the defunding of U.S. Immigration and Customs Enforcement (ICE), and criticized minorities working for CBP as "cog[s] in the oppression and incarceration of people who look just like them." And of course, there was this.
Not to be left out, the courts got involved.
When the administration promulgated an interim final rule (IFR) that would have required aliens who entered or arrived in the United States across the Southwest border to apply for asylum in a third country through which those aliens had passed before seeking that protection in the United States — the "third-county transit bar" — the IFR was initially blocked by a district court judge before the Supreme Court eventually intervened. When the administration implemented a Migrant Protection Policy (MPP, better known as "Remain in Mexico") to return third-country nationals who had entered illegally and who did not have a fear of harm in Mexico to that country to await their immigration proceedings, it was blocked by a district court judge before the Ninth Circuit stepped in to allow that policy to proceed. And when the administration, after a tortuous process, issued regulations to implement the Flores settlement agreement and permit the detention of families with children for more than 20 days, a district court judge blocked them.
So, given these roadblocks, why have the numbers of aliens seeking to enter the United States dropped precipitously in the last four months? Some of it has to do with traditional travel patterns. Over the last six years, the number of aliens apprehended after entering illegally has often (but not always) fallen in the hotter months of June, July, and August. That does not account, however, for all of the recent decrease, however.
CBP Acting Commissioner Mark Morgan has credited the MPP, along with agreements that the administration has reached with Northern Triangle governments, for the recent drop in monthly enforcement actions by an average of 22 percent per month. The end of "catch-and-release" policies (policies described in the bipartisan panel's report as excerpted above) will force the number lower yet, but that has itself been assisted by the MPP, as Acting Secretary of Homeland Security Kevin K. McAleenan has admitted.
So, at the end of the day, the administration, in coordination with foreign governments, has done the work that Congress has failed to do. That is a shame borne by both of the houses of the people's representatives. It is time for them to stop grandstanding and get to work.
I am not hopeful that will occur, however.