Morris "Mo" Udall, the late Democratic congressman from Arizona, once said at a committee hearing: "Everything has been said but not everyone has said it." The press has reached that point with respect to the 1,475 alien minors whom the Department of Health and Human Services (HHS) has purportedly lost track of.
As the Washington Post has explained it:
During a Senate committee hearing late last month, Steven Wagner, an official with HHS, testified that the federal agency had lost track of 1,475 children who had crossed the U.S.-Mexico border on their own (that is, unaccompanied by adults) and subsequently were placed with adult sponsors in the United States.
Thereafter, the story took on a life of its own, particularly in the context of the administration's plan to prosecute most if not all aliens who have entered illegally under section 275 of the Immigration and Nationality Act (INA). As an aside, because the federal government does not prosecute children under that provision, those children must be separated from their illegal-entrant parents during the parents' prosecution and incarceration.
For example, an opinion piece in USA Today headlined "The feds lost — yes, lost — 1,475 migrant children" that begins: "Before announcing a plan to separate more children from families, shouldn't there be a plan to adequately protect the children?" Thus, the purported "loss" of 1,475 alien minors became conflated with a Trump administration policy to enforce the immigration laws, always a hot topic for certain quarters of the mainstream media.
As with most "bumper sticker" issues, the story is more nuanced than, for example, it was portrayed above in USA Today. (It took an entire week before the paper issued a correction.)
Under section 462 of the Homeland Security Act of 2002, HHS makes placement determinations for unaccompanied alien children. Under recent interpretations of a 1997 settlement agreement in Flores v. Reno, there is a presumption that apprehended alien minors (even those arriving with parents) will be released to HHS within 20 days.
And, as I explained in an opinion piece in USA Today:
A Democrat-sponsored 2008 trafficking law divides unaccompanied children into two groups: Canadians and Mexicans (who can be returned quickly), and everybody else. The latter go to HHS, even if they haven't been trafficked, and aren't unaccompanied because they have family here. They must be "placed in the least restrictive setting", usually meaning release to family members.
The alien minors who have been released by HHS are the ones that the department has purportedly "lost". But they have not actually been "lost", as HHS explained in a May 28, 2018, press release:
"The assertion that unaccompanied alien children (UAC) are 'lost' is completely false. This is a classic example of the adage 'No good deed goes unpunished.' The Office of Refugee Resettlement (ORR), which is part of [HHS], began voluntarily making calls in 2016 as a 30-day follow-up on the release of UAC to make sure that UAC and their sponsors did not require additional services. This additional step, which is not required and was not done previously, is now being used to confuse and spread misinformation.
"These children are not 'lost'; their sponsors — who are usually parents or family members and in all cases have been vetted for criminality and ability to provide for them — simply did not respond or could not be reached when this voluntary call was made. While there are many possible reasons for this, in many cases sponsors cannot be reached because they themselves are illegal aliens and do not want to be reached by federal authorities. This is the core of this issue: In many cases, HHS has been put in the position of placing illegal aliens with the individuals who helped arrange for them to enter the country illegally. This makes the immediate crisis worse and creates a perverse incentive for further violation of federal immigration law." [Emphasis added.]
You read that correctly: HHS places children with family members who arranged to have those children smuggled to the United States.
This issue was brought to light by U.S. Federal District Court Judge Andrew Hanen in a December 2013 smuggling case, United States v. Nava-Martinez. Judge Hanen stated in an order in that matter:
This is the fourth case with the same factual situation this Court has had in as many weeks. In all the cases, human traffickers who smuggled minor children were apprehended short of delivering the children to their ultimate destination. In all cases, a parent, if not both parents, of the children was in this country illegally. That parent initiated the conspiracy to smuggle the minors into the country illegally. He or she also funded the conspiracy. In each case, the DHS completed the criminal conspiracy, instead of enforcing the laws of the United States, by delivering the minors into the custody of the parent living illegally in the United States. ... The DHS has simply chosen not to enforce the United States' border security laws.
Needless to say, if a parent or other family member were to pay to have an alien minor smuggled into the United States, that parent or other family member would have strong incentive not to accept a call from HHS verifying the whereabouts of that alien minor. To do otherwise would be akin to reporting your illegal gambling winnings or proceeds from your illicit drug sales on your tax return.
Foreshadowing the current debate, Judge Hanen concluded:
The DHS could reunite the parent and child by apprehending the parent who has committed not one, but at least two different crimes. It would be more efficient for the government to arrest the individuals who are not only in the country illegally, but while in the country illegally are also fostering criminal conspiracies. It would also be much cheaper to apprehend these co-conspirators and reunite them at the children's location.
Proposals to release both the parent and the child when they arrive as a family unit simply encourages more illegal entry. For example, in the context of smuggled alien minors, Judge Hanen found:
DHS's current policy undermines the deterrent effect the laws may have and inspires others to commit further violations. Those who hear that they should not fear prosecution or deportation will not hesitate, and obviously have not hesitated, to act likewise.
The same logic holds true for a failure to prosecute and detain adults who have entered illegally with minors.
Non-enforcement of the immigration laws of the United States, and the associated costs to the American people, are not the only hazards associated with such a policy. In his decision, Judge Hanen listed in extensive detail the perils and criminality associated with alien smuggling:
In the last year, this Court has seen instances where aliens being smuggled were assaulted, raped, kidnapped and/or killed. This Court's antidotal experiences, however, are not unique.
Mexican cartels, transnational gangs, human trafficking groups, and other criminal organizations engage in a wide range of criminal activity in Texas, including murder, kidnapping, assault, drug trafficking, weapon smuggling, and money laundering. However, by far the most vile crime in which these organizations and other criminals are engaged is the exploitation and trafficking of children. These crimes are also carried out and enabled by prostitution rings, manufacturers and viewers of child pornography, sexual predators, and other criminals. Regardless of who perpetrates these crimes or their motives, this category of criminal activity is especially heinous, as it takes advantage of children and subjects them to violence, extortion, forced labor, sexual assault, or prostitution.
The methods and means used by smugglers to transport and hold aliens subject them to high degrees of risk. Unsafe vehicles and drivers, squalid conditions in stash houses, rugged terrain, and harsh elements create dangerous circumstances. Hundreds of illegal aliens have died in Texas and elsewhere along the border.
In addition to these dangerous methods and means, smugglers also regularly use violence, extortion, and unlawful restraint against illegal aliens. In some cases, they are forced to perform labor, and females — including minors — may be sexually assaulted. Some are subjected to physical assaults if payments are not received, and several have died while being held in stash houses in Texas. And just as drug traffickers may attempt to steal drug loads from rival traffickers, criminals sometimes attempt to steal or hijack groups of aliens from smugglers.
Time and again this Court has been told by representatives of the Government and the defense that cartels control the entire smuggling process. These entities are not known for their concern for human life. They do not hire bonded childcare providers to smuggle children. By fostering an atmosphere whereby illegal aliens are encouraged to pay human smugglers for further services, the Government is not only allowing them to fund the illegal and evil activities of these cartels, but is also inspiring them to do so. [Emphasis added.]
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.
I was present when the decision was made to assign this task to HHS, and to say that it was poorly and hastily considered would be a significant understatement. That the department has done as good a job as it has is more astounding than the fact that more that 1,475 sponsors failed to respond to the department's calls.
The problems with the HHS Unaccompanied Alien Children Program are even more serious when the possibility is considered that some of those children were released to sponsors who actually exploited them. As the Washington Post reported in January 2016, for example, HHS released at least six minors to traffickers who forced them to work on an egg farm in Ohio. A Department of Justice press release explained the scheme:
[Aroldo] Castillo-Serrano recruited the victims, smuggled them into the United States, oversaw money transfers and issued threats to ensure compliance. [Ana Angelica] Pedro-Juan falsely represented herself to government officials as a family friend of the minor victims in order to have them released to her custody. She also oversaw the trailers where the victims were housed and arranged for their wages to be transferred to co-conspirators in Guatemala and elsewhere.
As the foregoing as a whole should make clear, the problem is not the "loss" of 1,475 alien minors by HHS. Instead, the issue is the release of any alien minors by HHS to begin with. A Department of Homeland Security (DHS) press release from April 2018 states:
Thus far in FY18, 13,186 UACs were released into the interior of the United States — that's in addition to the 42,146 UACs and 52,147 UACs who were released in FY17 and FY16 respectively, bringing the total number of UACs released from FY16 to date in excess of 107,000.
In a country of more than 327 million people, it would be impossible for any governmental entity, or even the government as a whole, to keep track of more than 107,000 alien minors at large in the United States.
The only way to ensure the safety and the presence at removal proceedings of alien minors is for DHS to detain them until their cases can be adjudicated. Such detention can be less restrictive than for adults, and should ensure that those alien minors receive food, housing, medical care, and education while in custody. Handing those minors over to family members in the United States simply completes the smuggling conspiracy, as Judge Hanen noted. Releasing them and their parents will only encourage more alien family units to attempt illegal entry, placing those aliens' lives at risk and enriching criminal smuggling enterprises.
Such action would require an amendment of the 2008 William Wilberforce Trafficking Victims Protection Reauthorization Act, as well a congressional fix for the Flores settlement agreement. As I explained in a May 4, 2018, Backgrounder, the Securing America's Future Act of 2018 (SAFA), sponsored by Rep. Bob Goodlatte (R-Va.), does both. Section 462 of the Homeland Security Act of 2002 must be repealed as well.
Returning to Mo Udall, the congressman also stated: "Let's turn inflation over to the post office. That'll slow it down." We have already seen what happens when the federal government institutes a policy encouraging the release of illegal-entrant alien minors and turns it over to HHS. The only thing it has slowed down is the removal of those aliens: A February 2018 DHS press release revealed that only 3.5 percent of unaccompanied minors are ever removed from the United States.
No wonder they keep coming.