Humanitarian and National Security Disaster at the Border

A Congress-and court-caused Katrina

By Andrew R. Arthur on March 8, 2019

On March 5, 2019, U.S. Customs and Border Protection (CBP) released its latest statistics on Southwest border apprehensions. As Homeland Security Secretary Kirstjen Nielsen stated in connection with those statistics:

The truth is that the politics and policies of open borders have failed the American people. Our broken system endures, and the ongoing humanitarian and security crisis at our Southwest Border leaves many minors and families at extreme risk of being exploited by traffickers, human smugglers, gangs, and other nefarious actors seeking to profit at their expense. ... Activist courts, congressional inaction, and criminals intent on breaking our laws stand in the way of confronting illegal and uncontrolled migration threatening our safety and security. What was a crisis, is now a full-fledged emergency.

It has been more than 10 months since I wrote a Backgrounder for the Center that expounded on the issues that Secretary Nielsen raises in her statement: "Catch and Release Escape Hatches, Loopholes that encourage illegal entry". At the time that I wrote that Backgrounder, I explained in detail those issues and their effects. I have done so many times since then, most recently in testimony on "Protecting Dreamers and TPS Recipients" before the House Judiciary Committee (HJC) on March 6, 2019.

To reiterate, the three loopholes that have had the most significant effect in creating this crisis are:

  • 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. In FY 2018, 41 percent of all aliens in expedited removal (97,192) were referred for a credible fear interview with an asylum officer. That year, asylum officers made decisions with respect to 84,336 of those cases. Credible fear was found in 88.5 percent (74,677) of those cases. In 2009, according to then-AG Sessions in October 2017, 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. From FY 2008 through FY 2018, only 53 percent of all aliens referred after credible-fear review to immigration court filed an asylum application, despite the fact that such applications were the purpose of those referrals. 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 Protection Reauthorization 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, aliens who are not from Canada or Mexico 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". ORR statistics reveal that the average length of time that a UAC remained in that office's care in FY 2018 was 60 days, in one of 100 shelters that HHS operates in 17 states. 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 released if they travel with children.

One of the two major focuses at that hearing was what to do with the almost 700,000 beneficiaries of Deferred Action for Childhood Arrivals, or "DACA". Announced on June 15, 2012, DACA provided eligibility for "deferred action" to aliens who had entered the United States under the age of 16 and were not then older than 30, who had continuously resided in the United States for a period of not less in five years, who were not subject to certain criminal bars, and who had met certain military service or educational standards. DHS attempted to end that program in September 2017; however, that termination has since been enjoined by several district courts.

Key to determining what to do with that population of individuals is assessing how to prevent a similar population of aliens from entering the United States in the future; otherwise, every few years some sort of amnesty would have to be crafted to address that population as well. Needless to say, credible fear, TVPRA, and Flores, each of which has contributed to the massive influx of aliens (and in particular alien children) who have entered the United States in recent years, is a crucial part of any such discussion.

During the four-plus hours of that hearing, however, I was only asked about those issues a handful of times, exclusively by the now-minority Republicans. The majority focused almost exclusively on the hardship that would accrue to those DACA recipients (and a similarly situated population of approximately 437,000 aliens who are currently present in the United States with Temporary Protected Status (TPS) were they to be deported from the United States), not the reasons for their arrival.

There were numerous opportunities in the last Congress to plug those loopholes, and to address the status of those DACA recipients, in particular H.R. 4760 (2018), the "Securing America's Future Act of 2018" (SAFA). SAFA received 193 Republican votes in the House of Representatives, but not a single Democratic vote, and therefore failed in the House.

One can draw one of two conclusions from the lack of interest by Democratic members, both at the March 6 hearing, as well as on the final vote on SAFA: 1) They do not believe the flaws in the credible fear system, the Flores settlement agreement, and TVPRA are drivers in the large number of families and UACs apprehended at the Southwest border; or 2) they do not believe that 76,000 aliens apprehended at the Southwest border or deemed inadmissible at the ports of entry along that border, 7,249 of whom were UACs and 40,385 of whom were in family units, constitutes a crisis meriting a congressional response.

With respect to the first conclusion, I would note that in a February 27, 2019, hearing before the House Appropriations Committee's labor HHS subcommittee (at which I also testified) there was a fulsome discussion about the role that violence in the three main countries from which the majority of those family units and UACs hail (El Salvador, Guatemala, and Honduras) played in the exodus of those foreign nationals to the Southwest border. To a member, each of the Democrats on that subcommittee who expressed an opinion believed that violence in those countries was the primary motivation for the departure of those aliens.

Thereafter, on March 4, 2019, my colleague Matthew Sussis issued a post that showed that there was very little correlation between the homicide rates in those three countries and the rate at which nationals those countries were apprehended entering the United States illegally. Homicide rates, in my experience, are the best statistic to use in assessing criminality for one basic reason: Not every crime is reported to police, and not every crime reported to the police is recorded by the authorities; however a killing is necessarily reported and almost universally recorded by the authorities. Put more simply, murder victims don't just disappear once they are found.

That is the statistical evidence. Now for the anecdotal evidence. A March 5, 2017, article in the Washington Post captioned "Family migration, already at record levels, rocketed to new high in February" contained the following:

An attractive job market in the United States is prompting more Central Americans to leave the poverty and insecurity of their home countries and head north, typically in groups of one parent and one child. Such pairings all but ensure the family will be processed quickly and released from U.S. custody in a matter of days.

Neither poverty nor insecurity is a basis for immigration relief in the United States, at least for those who enter illegally. The notation in that article that "pairings" consisting "of one parent and one child" will "all but ensure the family will be processed quickly and released from U.S. custody in a matter of days" reflects the flaws in the Flores settlement agreement and TVPRA.

That piece followed an article in the same paper the previous day captioned "Record number of families, cold reality at border" that detailed the entry of families and children along the Southwest border. Included therein was the following:

U.S. court restrictions on the government's ability to keep children in immigration jails — and the sheer volume of people arriving — have left Homeland Security agencies defaulting increasingly to the overflow model Trump deplores as "catch-and-release."

Again, the "court restrictions" referenced above is the Flores settlement agreement. That article continues:

It was the first time many of the migrants had been on an airplane. For Dionel Martinez, it was the second.

The 48-year-old Guatemalan came to the United States three decades earlier, working as a landscaper until he was deported — his only other time on a plane.

"We're going to Pennsylvania," he said. A friend had arranged a job at a pizzeria there.

With the savings from his first stint in the United States as a young man, Martinez was able to buy some land in his home country and start a family. But a drought this year had left them hungry.

"There was no harvest," he said. "Not one grain of corn."

His son Darwin, 13, came with him to the United States this time. The boy fainted during the journey, his father said, when they had to stand for hours in the back of a cattle truck.

Martinez said he paid 30,000 Guatemalan quetzals, about $2,500, to a "coyote" smuggling guide. It was a cheap rate, but it meant that he and his son traveled through Mexico in trucks, like cargo.

Across rural Guatemala, Martinez said, word has spread that those who travel with a child can expect to be released from U.S. custody. Smugglers were offering two-for-one pricing, knowing they just needed to deliver clients to the border — not across it — for an easy surrender to U.S. agents.

"If this continues, I don't think there will be anyone left in Guatemala," Martinez joked. The men from his village near the town of Chiquimula were all leaving, he said, bringing a child with them.

The final six paragraphs above neatly summarize the fact that TVPRA and Flores are driving families with children to undertake the appallingly dangerous trip from Central America to the Southwest border. It is important to note that this reporting does not come from a press outlet traditionally thought of as friendly to the Trump administration or its immigration policies.

With due respect to the two committees who invited me to testify, the reasons for the influx of parents and children along the Southwest border is better understood in rural Guatemala than it is on Independence Avenue in Washington, D.C.

It is only fair to note that this article then goes on to state:

Not all Central American families are economic migrants. Others, especially from Honduras, arrive with stories of gang threats and violent attacks. After crossing the border, a U.S. asylum officer performs a preliminary screening to determine whether their fears of persecution are credible enough to deserve a hearing with an immigration judge.

Two points: First, in a rather lengthy article, the Washington Post does not provide any eyewitness reporting of such claims. Second, "gang threats and violent attacks", are not generally grounds for asylum relief, regardless of what those "asylum officer[s]" conclude (assuming that such screening is taking place in most of these cases at all), a point that the Washington Post is careful to make:

The problem, Homeland Security officials say, is that a growing portion of those who pass the initial screening never appear in court. They know asylum standards are tightening. Or, like Martinez, they have a prior deportation from the United States that all but disqualifies them from getting asylum.

Once released into the U.S. interior, some shed their monitoring bracelets and slip into the shadows to remain in the United States, a country where wages are 10 times higher than in Central America. [Emphasis added.]

Congress created the credible fear system and TVPRA, and the courts (particularly in the Ninth Circuit) are responsible for the interpretation of Flores. Again, it is only fair to note that the Flores settlement agreement was actually entered into by the Department of Justice. The Janet Reno Department of Justice, more than 22 years ago. Since then, its implementation has been strictly judicial.

A review of the number of aliens apprehended and deemed inadmissible at the ports of entry from CBP reveals that there has been a monthly ebb and flow in the past five years of such aliens who are apprehended and deemed inadmissible. The bad news is that the flow generally begins in February and continues through June (the one exception being FY 2017 after the inauguration of Donald Trump). This means that we will likely see even more aliens apprehended along the Southwest border for at least the next four months, unless Congress and the courts act.

The migrants who undertake that journey suffer, and their arrival strains Border Patrol resources, both points that Secretary Nielsen made. The sufferings and strain will only get worse as the numbers increase.

Hurricane Katrina struck the Gulf Coast more than 13 years ago, leading to unfathomable suffering in the areas it effected, as U.S. News and World Report noted 10 years after the fact. The Bush administration was blamed for its response to that disaster.

There is a disaster of similar scope slowly unfolding every day along the Southwest border of the United States. This time, it is not nature who is to blame for the event, or the executive for the response. Instead, it is his coequal branches, Congress and the courts, for both. And unless they act, that disaster is only going to get worse.