Mayorkas’s Curious Request for Comments on Minimizing ‘Family Separation’

The secretary may hear some things he doesn’t want to

By Andrew R. Arthur on December 16, 2021

DHS has solicited ideas on “ways to minimize the separation of migrant parents and legal guardians and children entering the United States, consistent with the law”. Curiously, it focuses on the outcomes of illegal migration instead of the reasons for it— which would prompt answers DHS likely doesn’t want.

The December 10 notice in the Federal Register (“Identifying Recommendations to Support the Work of the Interagency Task Force on the Reunification of Families”) is written in dry bureaucratese, the language of the people whom you don’t elect but who run the government in your name. DHS Secretary Alejandro Mayorkas — whom you also didn’t elect, but whom your representatives confirmed — was not so delicate in announcing that effort; he also gave away the weaknesses in that request.

Candidate Joe Biden and “Family Separation” Under the Trump Administration. All of this is intended to fulfill a Joe Biden campaign promise.

On his campaign website, Biden argued: “It is a moral failing and a national shame when ... President Trump uses family separation as a weapon against desperate mothers, fathers, and children seeking safety and a better life.”

It was a smart move by the seasoned pol, who started in the U.S. Senate in his twenties during the Nixon administration, focusing on a little-understood policy briefly implemented by his political opponent that touched on the heartstrings of those who knew little about illegal immigration but a lot about the media-driven public persona of Donald Trump.

How “Zero Tolerance” for Illegal Entry Led to Family Separation. That policy was called “zero tolerance”, and it was adopted by the Trump administration in response to what seemed at the time to be a major influx of migrant parents and children entering the United States illegally in “family units” (FMUs). I say “seemed at the time” because the problem has only gotten worse since.

Under “zero tolerance”, adult migrants who had entered illegally were subject to criminal prosecution for illegal entry, without previously recognized exceptions for adults traveling with children. Illegal entry is both a ground of inadmissibility under section 212 of the Immigration and Nationality Act (INA) and a criminal misdemeanor (for a first offense, a felony for subsequent ones) under section 275 of the INA.

The problem was that, as the Congressional Research Service noted: "Criminally prosecuting adults for illegal border crossing requires detaining them in federal criminal facilities where children are not permitted." Adults prosecuted under zero tolerance went into the custody of the U.S. Marshals Service, while their children stayed behind in DHS custody.

Such prosecutions are usually not lengthy (and offenders are generally given time served), so under ideal circumstances, parents and their children would not be apart for more than a few days. “Ideal circumstances” would have meant sensible immigration laws, however, which was not the case.

That’s because in section 462 of the Homeland Security Act of 2002 (HSA), Congress took the authority for detaining alien minors (1) illegally present and (2) unaccompanied by an adult parent or guardian — “unaccompanied alien children” or “UACs” — away from federal immigration officials and gave it to the Office of Refugee Resettlement (ORR), a component of the Department of Health and Human Services.

Note that in 2002, ORR didn’t detain anyone, let alone children, while the former INS had been detaining migrant adults and children for years. Why was this change made? I was in the room the day this amendment passed, and I still have no idea. INS was in particularly bad odor, however, following the September 11 attacks, and opponents of its policies and activities saw an opening.

That said, the HSA never expressly stated how long those children had to be separated from parents and/or guardians before they went to ORR, and technically under the definition of “unaccompanied alien children” in 6 U.S.C. § 279 (also part of section 462 of the HSA), an argument could be made that migrant children with parents in the United States “available to provide care and physical custody” to them are not UACs.

The timing question was subsequently answered when Congress passed the “William Wilberforce Trafficking Victims Protection Reautherization Act”, better known as the “TVPRA”. Under section 235 of the TVPRA, DHS can only hold UACs for 72 hours before they are sent to ORR.

Now, I have no doubt that the authors of section 462 of the HSA and section 235 of the TVPRA had the best of intentions, but those provisions set the stage for the problems that would follow.

The 2014 Family Surge and Flores. It’s important to note at this juncture that the illegal entry of “family units” is a recent phenomenon.

A decade ago, 90 percent of illegal migrants were single adults, almost exclusively males from Mexico, and of the almost 421,000 illegal migrants apprehended by Border Patrol at the Southwest border in FY 2013, just 3.5 percent — fewer than 15,000 — were aliens in family units.

That all changed, however, beginning in FY 2014. That fiscal year, the number of illegal migrants in FMUs apprehended at the Southwest border jumped to more than 68,000, accounting for 14 percent of all Border Patrol apprehensions there. More aliens in FMUs were apprehended in June of that year alone (16,330) than in all of FY 2013.

The problem was — and is — that Border Patrol facilities were almost all constructed in the late 1990s and early 2000s to accommodate those single adult males from Mexico, who were almost all quickly processed and returned. They were not meant for couples, let alone families.

To house those FMU migrants and deter others from entering during that FY 2014 surge, the Obama administration opened “Family Residential Centers” in Texas and New Mexico.

By FY 2015, the number of FMU apprehensions fell to fewer than 40,000, and likely would have kept falling, were it not for intervention by the courts. To explain that I need to take a step back.

In January 1997, the Clinton DOJ and alien plaintiffs entered into a settlement agreement in Flores v. Reno. That Flores settlement agreement” dictated the conditions of detention and release of alien children by the INS, and most saliently required that those children be placed into state-licensed facilities.

The problem is that “family residential centers” are run by the U.S. government, not the states. Because the federal government does not detain children for criminal offenses, no federal licensing scheme was included in the Flores settlement agreement. Plus, that agreement presumes that alien children will be released. That said, it was likely never intended to apply to alien children travelling with their parents.

In February 2015, the Flores plaintiffs filed a motion with Judge Dolly Gee of the U.S. District Court for the Central District of California, who was overseeing the case. They asserted that DHS was in breach of the agreement because it had adopted a no-release policy for FMUs, and because the Family Centers did not comply with the state licensing requirement.

Judge Gee subsequently issued an order in August 2015, requiring DHS to release migrant adults and children in FMUs within 20 days. The Obama administration then rushed to the Ninth Circuit, which in July 2016 ruled that while DHS could detain the adults, it had to release the children — presaging “family separation”.

That said, to avoid separating parents and children, the adults in FMUs were usually released, as well. And because of Judge Gee’s decision, ICE never invested in detention space for family units. Today, there are only 2,500 detention spots in the Family Centers, despite the fact that Border Patrol apprehended almost 480,000 aliens in FMUs in FY 2021.

The Lead-Up to Zero Tolerance Under Trump. Not surprisingly, migrants (and more specifically, their smugglers) realized that entering the United States with a child was now a quick ticket to release in the United States. The number of aliens in FMUs apprehended at the Southwest border almost doubled between FY 2015 and FY 2016 (to just short of 77,700) and did not drop until the beginning of the Trump presidency in January 2017.

Those smugglers and adult migrants quickly realized, however, that — rhetoric aside — there was little that Trump could do in the short term to overcome the decision in Flores. While total apprehensions at the Southwest border dropped between FY 2016 and FY 2018, the number of aliens in FMUs apprehended surged, reaching almost 10,000 in the month of April 2018.

The Trump administration began looking for a way to discourage migrants in family units from entering illegally. A lot of that had to do with securing the border, but the dangers of the journey to the United States for those children should not be overlooked, either.

A bipartisan federal panel convened to examine the issue of family migration concluded in April 2019 that “[i]n too many cases, children are being used as pawns by adult migrants and criminal smuggling organizations solely to gain entry into the United States”. It found:

Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.

Thus, discouraging FMUs from entering illegally is in the humanitarian, national security, and law enforcement interests of the United States. Which is not to say that it is often recognized as such.

The Beginning and End of Zero Tolerance. In response, DHS ran a pilot program, primarily in El Paso, Texas, between March and November 2017, which increased prosecutions of migrants for illegal entry, including adults in FMUs. Approximately 280 alien families were separated, but illegal entries by FMUs also dropped there by 64 percent as a result.

It was against this backdrop that then-Attorney General Jeff Sessions announced his zero-tolerance policy, in a memo on April 6, 2018. It directed that all aliens referred to U.S. attorneys’ offices by DHS for illegal entry be prosecuted under section 275 of the INA.

That memo did not mention families, but adults in FMUs were prosecuted — and separated from somewhere around 3,000 children — before the policy was ended by Trump in an executive order issued on June 20, 2018.

Trump ended zero tolerance due to the fact that “family separation” was a public-relations disaster, but the program was exceedingly poorly implemented. ORR lacked shelter space, and the DHS IG found that the department lacked “the information technology (IT) system functionality needed to track separated migrant families” when it was in effect.

Other Family Separations. That said, family separations predated the Trump administration (actual numbers are not known, but they were lower than under zero tolerance) and families were also separated under Trump for reasons that had nothing to do with criminal prosecutions for illegal entries.

For example, the Congressional Research Service reported that in FY 2017 alone (which included the last four months of the Obama administration), 46 separations occurred due to fraud, and an additional “1,019 were due to medical and/or security concerns”.

With respect to fraud, the same bipartisan federal panel referenced above explained in its November 2019 final report that after “DHS piloted DNA testing at two Border Patrol stations”, which was later “expanded to a total of nine locations throughout” FY 2019, “15 percent of the tested claims of parentage were determined to be false.”

More shockingly, that report continues:

In fact, the Panel was briefed that once even limited DNA testing was carried out, the word quickly went back to the [Northern Triangle countries of El Salvador, Guatemala, and Honduras] that it was no longer possible to secure entry into the U.S. by bringing someone else’s child. Within two weeks word spread in Guatemala and Honduras: “NOW YOU MUST BRING YOUR OWN CHILD.”

DHS’s December 10 Request for Comments. Last week's request for comments in the Federal Register was prompted by Biden’s Interagency Task Force on the Reunification of Families. That task force was convened by the president to keep his campaign promise about family separation, but more bluntly to seize the moral high ground on the issue.

That latter impulse is reflected by Mayorkas’s statements in DHS’s press release about the request:

It is unconscionable to separate children from their parents as a means to deter migration. ... I have met with separated families and heard firsthand of the immense trauma they have suffered. We have an obligation to reunite separated families and ensure this cruel practice never happens again.

There is plainly a difference between “minimizing” family separations (the term used in the Federal Register) and “ensuring that they never happen again” (to paraphrase Mayorkas).

Respectfully, the only way that the Biden administration can ensure that family separations never happen in the future (and specifically under another administration with the temerity) is to (1) change the law and/or (2) prevent family units from entering the United States in the first place.

Neither Mayorkas nor anyone else in the Biden administration, however, has even hinted at changing the law, although it is necessary. That bipartisan federal panel specifically and in no uncertain terms made clear, for example, that Flores is badly in need of a legislative fix.

In its April 2019 report, the panel explained that the biggest factor in the migrant family surge that year was the practice of releasing FMUs with nothing more than a Notice to Appear (the charging document in removal proceedings, like a criminal indictment), and that the crisis was “further exacerbated” by the 20-day release requirement in Flores.

It called on Congress to: “Roll back the Flores Decision by exempting children accompanied by a parent or relative, who is acting as the guardian of the child.” Congress failed to act, and as noted, the Biden administration hasn’t proposed any such thing. Section 235(b) of the INA, however, mandates the detention of all illegal migrants, and makes no exception for family units.

That section mandates detention for good reason: Aliens enter the United States illegally to live and work here, and if they are unable to enter until they are granted asylum (and the panel noted that just 15 percent or less of them would be) they won’t come. Families that never enter illegally won’t be separated by this or any other administration.

The Federal Register post invites comments from any and all, which means that every citizen could make that recommendation.

Problems with the Biden Approach to the Issue of Family Separation. Which brings me to the problem with the Biden administration’s approach to family separations and every other border issue. It wants to respond to the problem without preventing the problem, heedless of the horrors inflicted on those who enter illegally on the way — horrors amply recorded in the panel’s two reports.

In the context of the Federal Register post and Mayorkas’s statements, the “problem” is the willingness of parents and guardians in those FMUs to enter the United States illegally with a child. Both the Federal Register notice and Mayorkas ignore the consequent responsibility that those parents and guardians bear for doing so.

Other options are available to those migrants, even if they have a real fear of persecution (which as noted, most don’t). Foreign nationals seeking asylum can apply in any number of Western Hemisphere countries, including all those they traverse on their way to the United States. Most usually choose to make the dangerous trek to the United States, however, for economic issues. Simply put, you can make more money here.

None of the family separations about which Biden and Mayorkas complain would have occurred had the parents and guardians not decided to make the choice to come here. Once they make that choice, they bear most if not all the responsibility for the consequences, but Biden — both before the election and after the inauguration — acts as if the United States is solely to blame.

That is why there was such an outcry over reports that the president would pay $450,000 to every parent and child separated under Trump — those who groused understood that fact. In essence, those parents will get rich because they made a deliberate choice to break the law, a choice that endangered them and more importantly, their children.

If Mayorkas is looking for “unconscionable” actions, deliberately exposing your child to trauma tops the list.

Opportunity to Comment. DHS is soliciting comments until January 10, 2022, on ways to minimize family separations. Comments can be submitted at this link, and you have a right to submit yours. DHS has opened the door, but until January 20, 2025, only Biden can close the border.