The Senate Homeland Security and Governmental Affairs Committee (HSGAC) held a hearing earlier this month on "Unprecedented Migration at the U.S. Southern Border: Perspectives from the Frontline". At that hearing, Chairman Ron Johnson entered into the record statistics on the immigration status of sponsors of unaccompanied alien children (UACs) between July 2018 and January 2019. Those statistics show that the vast majority of those sponsors lack immigration status.
As I explained in an April 1, 2019, Backgrounder captioned "Unaccompanied Alien Children and the Crisis at the Border":
Flawed U.S. laws and policies encourage UACs to make that trip to the United States, and encourage the parents and other relatives of those UACs to pay criminal organizations to bring them to this country. In particular, [under the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA)], the Department of Homeland Security (DHS) is required to turn all of those UACs from non-contiguous countries (that is every country other than Canada and Mexico) over to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS) within 48 hours of the point at which they were identified as UACs, for prompt placement in the least restrictive setting "that is in the best interest of the child". In FY 2018, the average UAC spent 60 days in an ORR shelter before being released.
Generally, most are released to a parent or other family member in this country, the majority of whom do not have lawful status in the United States.
The statistics introduced by Chairman Johnson underscore this last point. Between July 2018 and January 2019, 23,445 UACs were released to sponsors. Of those sponsors, 18,459, 78.7 percent, had no status in the United States. Worse, 21 were under final orders from removal, six were denied asylum and were appealing to federal court, and 638 (2.72 percent) were in removal proceedings.
Adding just those categories together, more than 81.5 percent of all UAC sponsors had no status or were facing the prospect of removal. Interestingly, 1,006 sponsors were listed as "other", an unclear identifier given the fact that U.S. citizens, lawful permanent residents, and even aliens with certain nonimmigrant statuses were individually identified.
In addition, 958 (4 percent) of those sponsors had Temporary Protected Status (TPS). The aliens in that status are in an extremely uncertain position as relates to the immigration laws of the United States.
There is strong evidence to support the conclusion that many, if not most, of these sponsors are the ones who are paying the smugglers to bring these UACs to the United States. For example, consider the order of Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas in U.S. v. Nava-Martinez, in which the defendant was convicted of smuggling a Salvadoran minor to the United States:
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. In response to this Court's inquiry about this policy in the instant case, the Government responded with a copy of the 1997 Flores v. Reno ... settlement agreement and a copy of a portion of the Homeland Security Act. No other explanation was offered — no doubt because there is no explanation. The DHS has simply chosen not to enforce the United States' border security laws.
Which brings me back to the 18,459 sponsors of UACs without status. Judge Hanen continued:
There is nothing in the Flores settlement that prohibits DHS from arresting [the adult who initiated the smuggling conspiracy and to whom the child was delivered] — or from at least initiating deportation proceedings. ... [T]here is nothing in [section 462 of the Homeland Security Act] that directs and authorizes the DHS to turn a blind eye to criminal conduct, and certainly nothing that compels it to participate in and complete the mission of a criminal conspiracy or to encourage parents to put their minor children in perilous situations subject to the whims of evil individuals.
While Judge Hanen is correct that nothing in the Flores settlement agreement or section 462 of the Homeland Security Act (or even the TVPRA or the Immigration and Nationality Act as a whole) prevents DHS from placing any sponsor of a UAC into removal proceedings. Section 224 of the Consolidated Appropriations Act, 2019, however, effectively bars DHS from using information obtained from HHS "to place in detention, remove, refer for a decision whether to initiate removal proceedings, or initiate removal proceedings against a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor of" a UAC, with limited exceptions. As Judge Hanen's logic suggests, this simply encourages parents to have their children smuggled to the United States by criminals with impunity.
According to U.S. Customs and Border Protection statistics, through March 2019, 35,898 UACs have been apprehended by the U.S. Border Patrol entering the United States illegally in the first six months of FY 2019. That compares to 50,036 in all of FY 2018, and 41,435 in FY 2017. The trendline is going in the wrong direction. HHS's release of the vast majority of UACs to aliens unlawfully present United States is bound to continue this trend.