It’s Biden vs. DeSantis on Housing Illegal Migrant Children

A mirror image of “sanctuary” policies — and proof that what goes around comes around

By Andrew R. Arthur on February 7, 2022

On February 2, CNN reported on an “ongoing feud” between Florida Governor Ron DeSantis (R) and President Biden over attempts by DeSantis’ team to prevent the Office of Refugee Resettlement (ORR) at the Department of Health and Human Services (HHS) from housing unaccompanied alien children (UACs) in the Sunshine State. It is both the mirror image of state and local “sanctuary” policies and the inevitable consequence of the federal government allowing such policies to fester.

Before I begin, I must note that my last government job was as DeSantis’ staff director at the National Security Subcommittee at House Oversight and Government Reform. That said, I was unaware of the dust-up between the governor and the president before CNN reported on it.

Why HHS/ORR Houses Unaccompanied Children. The first question that you may have is why HHS — home to the beleaguered CDC and Centers for Medicaid and Medicare — is involved in housing unaccompanied alien children? I can tell you how it got that responsibility, but I can’t really explain why.

Prior to the creation of DHS, another former employer, the Immigration and Naturalization Service (INS) within DOJ had responsibility for immigration enforcement — including alien detention. Immigrants’ advocates objected to INS detaining children, and in 1997, DOJ and a class representing UACs entered into the Flores settlement agreement (FSA).

The FSA created a policy favoring the release of alien children, but also required INS to place minors it did detain in the “least restrictive setting appropriate” based on their age and special needs "in a licensed facility". Almost 25 years later, the FSA is still in effect.

Even that, however, failed to satisfy the advocates. Consequently, when DHS was created (and INS abolished) in the Homeland Security Act of 2002, House Democrats offered an amendment introducing the UAC concept and giving ORR responsibility for their “care”.

Again, why ORR? I was in the room the day that amendment was offered, and I still have no idea (there was no debate). ORR never had jurisdiction to detain anybody previously, and they have since struggled with the responsibility.

The Homeland Security Act never explained when those UACs were supposed to be transferred to ORR, and it treated all UACs the same, regardless of where they were from.

The timing issue was answered by the Trafficking Victims Protection and Reauthorization Act of 2008 (TVPRA). It required DHS to transfer those children to ORR within 72 hours but went even further by distinguishing between DHS processing of UACs from “contiguous” countries (Canada and Mexico) and all other UACs.

The TVPRA allowed DHS to remove UACs from contiguous countries back home if they had not been trafficked and had no fear of return. UACs from non-contiguous countries, however, had to go to ORR regardless of whether they had been trafficked or had asylum claims, nearly all for indefinite placement with “sponsors” in the United States.

Family members of foreign national children from noncontiguous countries who were themselves illegally present in the United States (and more importantly, smugglers) knew a loophole when they saw one, and the number of UACs apprehended entering illegally at the Southwest border began to soar.

In FY 2010 (shortly after TVPRA took effect), fewer than 19,000 UACs were apprehended at the Southwest border. Four fiscal years later, the total grew to more than 68,500, mostly children from non-contiguous Central America.

President Obama was quick to act, and in June 2014 wrote to congressional leaders asking them to provide DHS “additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador” — in other words, to close the UAC loophole. Congress did nothing.

UAC apprehensions at the Southwest border — like migrant apprehensions there generally — plummeted after Trump’s inauguration but swelled again after their alien family members in the United States and smugglers realized that Trump was powerless to keep UACs out of the United States without congressional action.

UAC apprehensions reached more than 76,000 in FY 2019 before Trump implemented policies to deter illegal migration. Few of those policies were directed toward UACs per se, but smugglers got the message. Then the pandemic hit, sending UAC apprehension numbers even lower.

ORR Placement of UACs. Pending the release of UACs to sponsors (many of whom are their own parents, and most of whom are here illegally), ORR places those children in one of a series of state-licensed shelters it funds and oversees. HHS has just over 13,700 beds in its permanent shelter program, which consists of approximately 195 state-licensed facilities and programs in 22 states, at a cost of $290 per child per day.

During the 2014 migrant crisis, however, the Obama administration began to place UACs in its own temporary shelters, a practice that carried over to the Trump administration. Those HHS shelters are more expensive, costing about $775 per child per day.

The Covid-19 pandemic both reduced the number of illegal migrant UACs and (to promote social distancing) the number of available shelter beds. Shelters either reduced their capacity or did not renew expiring ORR contracts.

Biden’s Migrant Child Crisis. Then, President Biden took office, and UAC entries soared again.

In FY 2021, DHS apprehended nearly 145,000 UACs at the Southwest border. Prior to the Biden administration, the only month in which UAC apprehensions at the Southwest border exceeded 10,000 was May 2019 (when Border Patrol caught 11,475 UACs). UAC apprehensions have exceeded 11,000 every month since May.

The administration and ORR have struggled to respond. In February 2021, HHS had to reopen a “temporary” UAC shelter in Carrizo, Texas, that had been shuttered under the Trump administration. By March, the administration needed 20,000 beds to keep pace with the flow, housing older UACs in temporary HHS facilities while placing younger children in the state-licensed shelters.

All told, the Biden administration opened 15 temporary ORR facilities between February 22 and May 2, and as of the end of August, five remained in use.

State representatives and advocates raised concerns about conditions in those facilities. In April, Texas Governor Greg Abbott (R) called for the federal government to close one facility in his state following what he called “credible” complaints about sexual assault, understaffing, and food and medical issues. He called in the Texas Rangers, a component of the state’s Department of Public Safety, to investigate.

In July, two whistleblowers at a separate Texas facility filed a complaint in which they alleged that employees of the private contractor in charge had no child welfare experience or Spanish-language skills, and no relevant training.

Concerns were also raised that HHS was cutting corners in the vetting process to move UACs from shelters to sponsors in the United States. While UACs had been spending 60 days in ORR care in FY 2018, and 102 days in FY 2020, during the first six months of FY 2021, that had been pared down to an average of 35 days.

In September, it was revealed that the government “lost contact” with about a third of the UACs it had released between January and May — nearly 5,000 children. The number may be higher because many required follow-up calls were not placed to check in on children who had been released.

Although the monthly number of UACs apprehended at the Southwest border has declined since reaching all-time highs in the spring and summer, apprehensions are still hitting records for their respective months.

For example, Border Patrol apprehended 11,752 UACs at the Southwest border in December, beating the prior record for the month, set in 2016 (7,187) by 63 percent. In early January, 15,000 UACs were in federal custody, 5,000 of whom were languishing in Border Patrol facilities. One single Border Patrol facility in Texas, which was intended to accommodate 250 children, held 3,900 kids.

The surge in UACs attracted a lot of press attention early last spring. The problem has not gotten much better, but the media are not focusing as much attention on the issue — for now.

DeSantis Demands Changes. It is against this backdrop that DeSantis is pushing back on Biden’s UAC policies.

As CNN reported, on December 10, DeSantis issued an emergency rule that would deny state licenses or license renewals to UAC shelters unless the federal government entered into a “cooperative agreement” under which Florida would be provided with notice before UACs were moved into the state.

Nearly two weeks later, HHS sent the governor a letter “seeking clarification” of that rule, and threatening legal action.

In response, Florida General Counsel Ryan Newman sent a letter to HHS on January 26, in which he contended that "the Biden administration has exacerbated the UAC problem by pursuing open border policies and lax immigration enforcement”.

Newman noted that the burden of caring for UACs was not being shared equally among the states, estimating that nearly 4,300 UACs had been housed in ORR-contracted facilities in Florida in the past year.

Using HHS’s own data, Newman explained further that ORR had placed 11,145 UACs with sponsors in the state in the past fiscal year — the second-highest number of placements in the country, and more UACs than had been placed in California (10,773), despite the fact the Golden State has nearly twice the population.

Not only were UAC burdens not being shared equally, Newman asserted, but the federal policies that he blamed for incentivizing child trafficking were also bad for the children themselves. Echoing points I made above, he explained:

Many of these UAC are trafficked to the southern border by cartels and other illicit actors. After taking custody of the minors, the Federal Government then, in effect, completes the human trafficking scheme by delivering the minors to persons across the country, many of whom are unknown or poorly vetted, involved in the trafficking conspiracy, or are themselves in the country unlawfully.

Then there is the danger that some of those UACs pose to the community. Newman argued:

Most UAC are male teenagers nearing adulthood, and some are gang members when they arrive or later become gang members. Given the illicit nature of smuggling or trafficking minors at the southern border, it can understandably be difficult to confirm the true age of many UAC. Unfortunately, the Federal Government’s failure to verify the age of UAC released into the United States can have deadly consequences. Late last year, a Florida man was murdered by an adult foreign national who entered the country illegally claiming to be an unaccompanied minor.

Newman explained that Florida has “no obligation to aid or assist the Federal Government's policy choices”, and that “until significant changes are made in federal immigration enforcement” by the administration reimplementing Trump’s immigration policies or implementing similar policies of its own, the state’s Department of Children and Families had no obligation to enter into cooperative agreements with the federal government, “and it does not intend to do so”.

The Effect of Florida’s Actions. CNN portrays the state licensure issue as a matter of preference on the federal government’s part, but I am not so sure.

The FSA (at paragraph 19) required INS to place alien children in licensed facilities, with an exception for emergent situations. That agreement also applies to INS’s “successors in office”, which in this instance would be ORR, meaning that HHS is only allowed to put UACs in licensed shelters, with limited exceptions.

Given that, if Florida were to hold the line — and other states to join it — ORR may be in a fix, particularly if any of the Flores plaintiffs were to go back to court to seek enforcement against that office. It is questionable whether any of them would do so in this context, but it is plainly an issue.

What this matter more largely reveals, however, is the dependence of the federal government on the states in carrying out the requirements of the immigration laws, and the power of the states under our federal system to deny assistance to the federal government in doing so.

That power was at the heart of ”sanctuary” policies implemented by states and localities to stymie ICE enforcement against removable aliens in the United States. ICE resources are limited, but traditionally states, cities, and towns were amenable to assisting the agency to locate illegal aliens, and in particular, criminals.

That all changed under the Obama administration, as state and local governments that favored amnesty and opposed immigration enforcement began to restrict and/or block their law-enforcement personnel from providing information and assistance to ICE.

Courts have been resistant to attempts by the federal government to force states and localities to assist ICE enforcement, which has made ICE’s job all the harder.

Now, however, it is ORR that needs help from the states to shelter, process, and release UACs into the United States. In the past, states were reflexively compliant with ORR’s needs, but as DeSantis’ actions show, that is changing.

State and local governments hostile to immigration enforcement have used their power to hinder immigration policies they don’t agree with. Gov. DeSantis — who opposes what he deems the Biden administration’s “open border policies and lax immigration enforcement” — is proving once again that what goes around comes around.