House Judiciary Democrats Go After 'Family Separation Policy'

The tunnel vision of the ruling class

By Andrew R. Arthur on February 6, 2019

The first hearings in any new Congress in which one house and/or the other has changed hands generally reflect the pent-up rage of the new majority party. The new majority with the gavel on the House Judiciary Committee has been true to form: The Democrats on that committee issued a press release this week captioned "House Judiciary Committee Announces Oversight Hearing on Family Separation Policy", set for February 12. Respectfully, they themselves are the ones to blame, but don't expect them to admit that.

As the press release states:

Conducting oversight of the Trump Administration's family separation policy is long overdue. There has been little oversight of the role that the Departments of Homeland Security, Justice, and Health and Human Services played in creating and implementing an abhorrent policy that resulted in thousands of children being separating [sic] from their parents at the border.

It is clear that the Departments were either incompetent, or grossly negligent, in the policy's implementation, which only compounded the trauma inflicted on innocent children. Many questions still remain and it is time for a full accounting of this shameful policy.

I have written previously about the loopholes that are exploited by aliens who seek to enter the United States illegally. Those loopholes are particularly attractive to parents who, heedless to the obvious dangers of bringing a minor to the United States, do so anyway. To recap:

  • Deficiencies in the Credible Fear System. Aliens caught entering the United States illegally are supposed to be "expeditiously removed" from the United States, without seeing an immigration judge. If the alien claims a "credible fear" of return, however, the alien will be interviewed by an asylum officer. If the asylum officer finds the alien has established a credible fear, the alien is eligible for removal proceedings to apply for asylum. Credible fear is found in 75 to 90 percent of all cases reviewed by asylum officers. In 2009, according to Attorney General Sessions, the Obama administration began releasing aliens found to have credible fear. As a likely result, the number of credible fear reviews increased significantly, from 5,000 in 2009, to 94,000 in 2016. In fact, prior to 2013, only 1 percent of arriving aliens claimed credible fear, whereas currently 10 percent make such claims. The attorney general has stated that half of those who pass credible fear screening never file an asylum application, however. U.S. Immigration and Customs Enforcement (ICE) lacked detention space to hold all aliens who claimed credible fear in the past, and many were released for hearings that may occur years in the future. It is unclear whether DHS will be able to find sufficient space to detain aliens who are apprehended and are found to have credible fear pending a final decision on their applications for asylum, despite the department's best efforts.
  • The Current Iteration of the William Wilberforce Trafficking Victims Reauthorization Protection Act of 2008 (TVPRA). Section 462 of the Homeland Security Act of 2002 vested jurisdiction over the care and placement of UACs in removal proceedings with the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS). The TVPRA distinguishes between UACs from "contiguous" countries (Canada and Mexico) from aliens who are nationals of "non-contiguous" countries. A UAC from a contiguous country can be returned if the alien has not been trafficked and does not have a credible fear. Under the TVPRA, however, OTMs [other than Mexicans] are to be transferred to the care and custody of HHS within 72 hours and placed in formal removal proceedings, even if they have not been "trafficked". According to the Congressional Research Service (CRS): "ORR reported that children spent about 34 days on average in the program as of January 2016." Between February 2014 and September 2015, 56,000 (80 percent) of the children were placed with sponsors illegally in the United States and an additional 700 were placed with sponsors in deportation proceedings. In FY 2014, according to CRS, most of the UACs who were released were placed with parents or legal guardians.
  • The Flores Settlement Agreement. The agreement, which was originally signed in 1997, has now been read to create a presumption in favor of the release of all alien minors, even those alien minors who arrive with their parents. As DHS has stated: "Under the Flores Agreement, DHS can only detain UACs for 20 days before releasing them to [HHS] which places the minors in foster or shelter situations until they locate a sponsor." The agreement encourages UACs to enter the United States illegally, and encourages the parents of UACs to hire smugglers to bring them to the United States. Further, it encourages people to bring their own children (or children whom they claim to be their own) when they make the perilous journey to the United States, thinking that it will make it more likely that they (the parents or purported parents) will be more likely to be released if they travel with children.

We have a principle in tort law called "attractive nuisance". Black's Law Dictionary explains it as:

The principle that states that people have something on their premises that is attractive to children but has inherent dangers. The owners are expected to take all reasonable care that no harm comes to the children.

Think of a ladder propped up against your house. Some curious child could climb it, fall, and injure him- or herself.

These immigration loopholes are an attractive nuisance that practically beg so-called "family units" — that is, a parent or parents with children — to hire a smuggler to come to the United States.

It is important to reiterate the hazards of the journey those family units make to the United States. In an October 2018 post, in which I discussed a report issued by Doctors Without Borders (popularly known by its initials in French, "MSF") I quoted the report as saying:

In a migration context marked by high vulnerability like the one in Mexico, sexual violence, unwanted sex, and transactional sex in exchange for shelter, protection or for money was mentioned by a significant number of male and female migrants in the surveys. Considering a comprehensive definition of those categories, out of the 429 migrants and refugees that answered [sexual and gender-based violence (SGBV)] questions, 31.4 percent of women and 17.2 percent of men had been sexually abused during their transit through Mexico. Considering only rape and other forms of direct sexual violence, 10.7 percent of women and 4.4 percent of men were affected during their transit through Mexico.

Sexual violence was not the only focus of that report, however. The executive summary notes:

Along the migration route from the [northern triangle countries of El Salvador, Guatemala, and Honduras (NTCA)], migrants and refugees are preyed upon by criminal organizations, sometimes with the tacit approval or complicity of national authorities, and subjected to violence and other abuses — abduction, theft, extortion, torture, and rape — that can leave them injured and traumatized.

During my recent trip to the Southwest border, I learned about yet another hazard those migrants face: criminals who will follow the smugglers until the migrants are dropped off, and then accost, rob, and molest those migrants. I have serious doubts that the smugglers who solicit business in the primary sending countries for those family units disclose these dangers, let alone get signed releases. Attractive nuisance.

And for some reason that I can't quite grasp (aside from not wanting to give credence to anything that Donald Trump says), the press largely does not report on these abuses. More shockingly, I recently had someone (again, not a Trump fan) become angry with me for bringing them up to explain the bases behind the president's border-security funding requests. As John Adams once stated, however: "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence." Again, that would be a good thought for the House Judiciary Democrats to keep in mind on February 12.

Why? Well, the Democrats are largely to blame for these loopholes. It was the Janet Reno Department of Justice (DOJ) in the Clinton administration that entered into the Flores settlement agreement. In fact, that agreement is captioned JENNY LISETTE FLORES, et al., Plaintiffs v. JANET RENO, Attorney General of the United States, et al., Defendants.

And it was Loretta Lynch, Barack Obama's attorney general, whose DOJ lost the July 2016 appeal to the Court of Appeals for the Ninth Circuit that broadened that settlement agreement to children who entered the United States accompanied by their parents. AG Lynch did not seek Supreme Court review of that decision, in essence acceding to the Ninth Circuit's dictates.

Further, the TVPRA was the product of House Democrats. Its sponsor was Howard Berman (D-Calif.), who was then a member of the House Judiciary Committee (which had jurisdiction over the bill), and among the six cosponsors was Zoe Lofgren (D-Calif.), one of the authors of the press release quoted above, and John Conyers (D-Mich.), then-chairman of the House Judiciary Committee. By the way, Lofgren is now the chairwoman of the Judiciary Committee's Subcommittee on Immigration and Citizenship.

For what it is worth, if memory serves, Lofgren was also the sponsor of an amendment in the Judiciary Committee to the Homeland Security Act of 2002 that added section 462 to that bill. As noted, this section vested jurisdiction over the care and placement of unaccompanied alien minors (UAC) in removal proceedings with ORR in HHS.

As I noted in a June 2018 post on 1,475 alien children for whom HHS was responsible and who were purportedly "lost" (spoiler alert: they weren't really lost):

Regardless of whether alien minors are separated from their parents because those parents are in the process of being prosecuted, or the minors are apprehended unaccompanied after entering illegally, the biggest issue is the capacity of HHS to process those alien minors. The mission statement of HHS reads as follows:

The mission of the U.S. Department of Health and Human Services (HHS) is to enhance the health and well-being of all Americans, by providing for effective health and human services and by fostering sound, sustained advances in the sciences underlying medicine, public health, and social services.

Notably absent from that mission statement is anything having to do with the sheltering of alien minors, or their proper processing to responsible adults in the United States. To make matters worse, as Steven Wagner, HHS acting assistant secretary for children and families (who revealed the purported "loss" of the 1,475 alien minors) has stated:

The Unaccompanied Alien Children Program is being abused; it was never intended to be a foster care system with more than 10,000 children in custody at an immediate cost to the federal taxpayer of over one billion dollars per year.

Just to close the loop, it is a little churlish for House Judiciary Democrats to complain about "the role that [HHS] played" in the implementation of a purportedly "abhorrent policy that resulted in thousands of children being separating from their parents at the border" and in which they were purportedly "either incompetent, or grossly negligent." I don't think that HHS ever asked to be the caretaker of 10,000 alien children, and nothing in their mission statement suggests that they would be any good at the job. Why not assign it to the Postal Service or the Department of Energy? Anybody except those evil, evil people in the former INS who were skilled at it. This is akin to having a painter wire your house and then complaining when it burns down.

Returning, however, to the bigger issue, no oversight is needed to determine the role that anybody "played ... in creating and implementing" the family separation policy. I will spare them the time and identify the offender: then-AG Jefferson Beauregard Sessions III. How do I know? He said so, in an April 6, 2018, memorandum.

Specifically, in that memorandum, AG Sessions stated:

On April 11, 2017, I issued a memorandum to all federal prosecutors entitled "Renewed Commitment to Criminal Immigration Enforcement," in which I directed the prioritization of the prosecution of certain criminal immigration offenses. I further directed each United States Attorney's Office along the Southwest Border to work with the Department of Homeland Security to develop guidelines for prosecuting offenses under 8 U.S.C. § 1325(a).

Those seeking to further an illegal goal constantly alter their tactics to take advantage of weak points. That means we must effectively respond with smart changes also. The recent increase in aliens illegally crossing our Southwest Border requires an updated approach. Past prosecution initiatives in certain districts—such as Operation Streamline—led to a decrease in illegal activities in those districts. We must continue to execute effective policies to meet new challenges.

Accordingly, I direct each United States Attorney's Office along the Southwest Border—to the extent practicable, and in consultation with DHS—to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a). This zero-tolerance policy shall supersede any existing policies. If adopting such a policy requires additional resources, each office shall identify and request such additional resources.

I explained the nuts and bolts of that policy in a May 2018 post captioned "U.S. to Prosecute Parents Entering Illegally with Children, An unpopular but necessary step":

Under a new policy, the U.S. government will be prosecuting aliens who enter illegally, including aliens traveling with children. While this is a seemingly harsh action, it is crucially needed to stem the flow of aliens traveling in family units who are making the perilous journey to enter the United States illegally.

As the Wall Street Journal describes it:

The Trump administration plans to step up the prosecution of parents who cross the U.S. border illegally with their children, separating more families in hopes of deterring such crossings, officials said.


Under the new policy, adults will still be able to apply for asylum, but they may be detained while their cases are considered. Children will be treated as if they had arrived in the U.S. without an adult. Unaccompanied children from countries other than Mexico and Canada are placed with family or in shelters while their cases are considered by immigration courts, a process that can take years.

Under current policy, many families are released whole while their asylum cases are processed.

Section 275 of the Immigration and Nationality Act [which includes the aforementioned 8 U.S.C. § 1325(a)] provides criminal penalties for those who enter, or reenter, the United States illegally. First time illegal entrants face a fine and a misdemeanor penalty of up to six months in jail, while illegal reentrants face a fine and a felony two-year sentence. There are no exceptions in the INA to prosecution for adult aliens who are traveling with children.

At the time that I wrote that, I noted:

In April 2017, according to U.S. Customs and Border Protection (CBP), 1,118 aliens traveling in family units were apprehended by the Border Patrol. By last month, one year later, that number had increased to 9,647, a more than eight-fold increase, according to CBP.

By December 2018, according to CBP, the number of family units apprehended by Border Patrol had ballooned to 27,518, a 2,332 percent increase over April 2017. In the first three months of FY 2019 alone, 75,794 aliens traveling in family units have been apprehended along the Southwest border. That is a crisis.

Lest you think that indicates that the zero-tolerance policy was a failure, think again. Due to the outcry about that policy, it was quickly discontinued, as I explained in a June 2018 post. Law-enforcement officials with whom I spoke during my recent border visit, however, indicated the prosecution of illegal entrants is a critical tool in preventing illegal entry. Not surprisingly, fewer people enter the United States illegally if they know they're going to go to jail as a result. But what do those officials know? They actually have to deal with the mess Congress has created, not issue press releases about it.

Again, why blame Congress? As I noted above, there are no exceptions in the INA to the prosecution of adult aliens who are traveling with children for illegal entry. The operative language of section 275(a) of the INA is essentially the same as it was when that act was passed in 1952, and no current member can be held responsible for it. Lofgren has shown, however, that she knows how to amend the INA, particularly as it relates to minors, but did not do anything to craft an exception when House Democrats last held power in the 110th and 111th Congresses, including periods in the 111th Congress when they held a supermajority in the Senate, the majority in the House, and a Democrat sat in the White House. Not that she did not know the law: She was an immigration attorney before she went into politics.

Could the implementation of the policy have been better handled? Yes, as the White House has implicitly acknowledged. Again, however, it was the Democrats (and in particular the Democrats on the House Judiciary Committee) who gave the authority to HHS to handle UACs to begin with, and it was HHS who was blamed for bungling that responsibility, as The Hill and several Democratic senators have noted.

Until Congress (and in particular congressional Democrats) stop beating their chests and plug the loopholes that encourage parents to utilize their children as pawns in a gambit to enter the United States illegally and live here indefinitely, the numbers of family units will simply increase. I don't expect those legislative fixes to happen, so in a year's time I will likely be writing yet another post that will require a calculator to determine the percentage of increase in the number of family units who have entered illegally since the low point in April 2017. The rapes will continue, the assaults will continue, the robberies will continue, the degradation of human beings will continue, smugglers and cartels will get rich, and we will all pay the price. The law would have been a helluva lot better if House Democrats hadn't gutted it.