O'Malley v. Cuccinelli on 'Kids in Cages'

Blather or blarney? Why not both!

By Andrew R. Arthur on December 5, 2019

If you're from outside the Beltway, you likely have not heard about a minor fracas between former Maryland Governor Martin O'Malley (D) and acting Deputy Secretary of Homeland Security Ken Cuccinelli at the Dubliner pub in Washington, D.C., on the night before Thanksgiving. I only discuss it because it brings into clear relief much that is wrong with the immigration debate today.

Petula Dvorak detailed the dustup in a "Perspective" piece in the Washington Post on December 2, 2019. Both men were there because they are graduates of Gonzaga High School, a rather exclusive Jesuit institution not far from Capitol Hill. Alumni of the school get together on the night before Thanksgiving annually.

My colleague Jerry Kammer and I are graduates of one of Gonzaga's sister Jesuit schools, Loyola Blakefield in Towson, Md., which celebrates the same tradition. So I am familiar with the event, if not the setting.

The Jesuits have an interesting education style, in which students are encouraged to question, and debate, everything, at least in the abstract. I would note that although Kammer and I are fellow alumni, we have very different political perspectives, a fact about which longtime Loyola teacher and icon Fr. "Buck" Sheridan would be proud (although likely slightly more proud of the Pulitzer Prize-winning Kammer than your simple pundit). It is in this context that the O'Malley-Cuccinelli tiff is best understood.

As Dvorak explains:

O'Malley, 56, was at the Dubliner, the Irish pub that's filled with the school's iconic purple gear before every Gonzaga football game, before the Gonzaga Smoker, the annual alumni reunion always held on Thanksgiving eve in the school's huge gym.

Cuccinelli, 51, walked into the pub a little later, and O'Malley went after him. The two-term governor of Maryland had "veins bulging from his neck, screaming and yelling," Cuccinelli later told Fox News.


"I told him very directly that his ripping of refugee children from their [parents'] arms and putting them in cages on our southwest border was shameful and contrary to every value we hold dear, as Americans, as Christians, as Men for Others, and as human beings," O'Malley told me through emails Monday evening.

It is difficult to place this donnybrook into perspective without talking about O'Malley, but I do not want to bash the man or his character. I supported his campaign for mayor of Baltimore (where I lived at the time), because he was running as a reformer who would turn the city around. He had his successes in reducing crime during his seven-year tenure, but not without controversy. He left early to become governor, a position in which his successes were less than stellar. He was a strict partisan, as even NBC News has admitted, reporting: "When Martin O'Malley was governor of Maryland, he worked hard to draw congressional districts that would favor Democrats and squeeze out Republicans."

One of those districts in which I previously lived was described by the (far-left) New Republic as follows:

Maryland's 3rd congressional district, the most gerrymandered in the nation, is a Rorschach test in the most literal sense. The Washington Post called it a "crazy quilt." A local politician compared it to "blood spatter from a crime scene." A federal judge said it reminded him of a "broken-winged pterodactyl, lying prostrate across the center of the state." DCist suggested we ditch metaphor altogether and change the word "gerrymander" to "Marymander."

To give you an idea of what Marylanders thought of his tenure, voters in the second-most Democratic state in the country elected a Republican, Larry Hogan, Jr., to replace him. Hogan beat O'Malley's Lieutenant Governor, Anthony Brown, by more than 76,000 votes in 2014. Did I mention that "David Simon, creator of the Baltimore-based television series 'The Wire,' has said that the character, Tommy Carcetti, is based partly on O'Malley"? It is not a flattering comparison.

O'Malley ran for president in 2016, a campaign NBC News described thusly: "O'Malley struggled to register among a mass of voters lining up behind Hillary Clinton and Sen. Bernie Sanders. He rarely topped 2 percent in national polls."

Frankly, every position that O'Malley held seemed to be nothing more than a stepping-stone to the next one, but his plan came to a crushing halt in Iowa. He is apparently now the "Poling Chair of Business and Government" at the University of Indiana, and "a senior advisor on smart governance to Grant Thornton Advisory Services."

Back to O'Malley's comments last week. I have written extensively about the detention policies of the Trump administration, and in particular as they relate to unaccompanied alien children (UACs). In the spirit of Poling Chair O'Malley, I will refer to what I had to say in response to similar statements made in a different bar (during a campaign appearance in Phoenix, Ariz., in October) by his 2020 doppelganger as would-be heir to the legacy of JFK and RFK, Beto O'Rourke.

As USA Today described an interaction at that event:

He respectfully dispatched a question from a woman in the crowd from an anti-illegal immigration group, who arrived with others who appeared looking for confrontation. The woman called him by his given name, Robert, and asked why he was "pandering to illegal aliens" over those who came to the U.S. legally.


The crowd chanted her down while O'Rourke responded by saying in part, "What is a slap in the face to my conscience and the best traditions of this country is taking kids from their parents and putting them in cages." His closing response to her: "Those immigrants pose no threat to you."

In my post, I questioned whether this was really a "respectful[] dispatch[]", but then went on to discuss the factual errors in that statement:

Snopes (not exactly a Trump-friendly outlet) examined the following fact: "The Obama administration, not the Trump administration, built the cages that hold many immigrant children at the U.S.-Mexico border." They deemed that statement "true", explaining:

Pictures of children behind chain-link fencing were captured at a site in McAllen, Texas, that had been converted from a warehouse to an immigrant-detention facility in 2014. Social media users who defended Trump's immigration policies also shared a 2014 photograph of Obama's Homeland Security Secretary, Jeh Johnson, touring a facility in Nogales, Arizona, in 2014, in which the fencing could be seen surrounding migrants there as well. That picture was taken during a spike in the number of unaccompanied children fleeing violence in Central American countries.

The website [went on], referencing a statement made by former Homeland Security Secretary Johnson during a June 2019 interview at the Aspen Institute: "Very clearly, chain link, barriers, partitions, fences, cages, whatever you want to call them, were not invented on January 20, 2017, OK." It continued:

During the Aspen interview, Johnson said that use of the "cage" detention housing method was supposed to be temporary, and that under the law, children were only supposed to be kept in those facilities for 72 hours before being transferred to the care of the Department of Health and Human Services (HHS). "But during that 72-hour period, when you have something that is a multiple, like four times, of what you're accustomed to in the existing infrastructure, you've got to find places quickly to put kids. You can't just dump 7-year-old kids on the streets of McAllen or El Paso."

The chain-link fences, Johnson said, were to separate people by gender and age until they were released or transferred to HHS's care.

As I mentioned with respect to O'Rourke, I have no recollection of Governor or private-citizen O'Malley criticizing the conditions of detention along the southwest border when Barack Obama (D) was the president. Nor do I remember him raising it during his brief stint on the campaign trail.

Nor did I hear the former governor complain when Congress was blocking aid that the administration was pleading for to get UACs out of Border Patrol facilities (which were not built for the purpose of extended detention, let alone the detention of children) and into HHS shelters.

With respect to O'Malley's reference to "refugee children", that suggests that the minors in question fit the definition of "refugee" in section 101(a)(42) of the Immigration and Nationality Act (INA). Which they don't, because to be a "refugee" you have to be outside of the United States. What he apparently means are "asylee children", but again, that may be a bit of a stretch.

I assume that O'Malley is talking about minors who are apprehended with their parents by U.S. Customs and Border Protection (CBP) along the southwest border as part of family units (FMUs), parents who are placed into expedited removal under section 235(b) of the INA and claim credible fear.

As I noted in a recent post:

Most aliens in expedited removal cases in which credible fear was found were denied asylum by the immigration courts:

  • In FY2018, 34,031 aliens in expedited removal received positive credible fear findings and were referred to immigration court to apply for asylum.
  • Of that number, 13,369 aliens (approximately 39 percent) failed to file an asylum application, abandoning their claims. Most of those aliens likely simply used the credible fear process to bypass expedited removal and obtain entry into the United States.
  • By comparison, only 5,577 of those 34,031 aliens were ultimately granted asylum.
  • Thus, only 27 percent of all aliens who were referred to immigration court after a positive finding of credible fear and who applied for asylum were granted asylum, a percentage that dropped to 16.4 percent when all aliens in expedited removal who were referred by USCIS are included.

While it could be argued that these numbers represent just a snapshot, the total number of successful asylum claimants in immigration court is similarly low. In FY 2018, immigration judges adjudicated 64,223 asylum applications, granting only 13,173, or 20.5 percent.

Even those facts cannot be the end of the discussion, because they only tell the story from this side of the border. Many if not most of the children in question are here because they are being used as pawns by their parents in a gambit to get released into the United States, as I explained in an analysis of one such case in a June 2019 post.

And, as I noted in that post, the route that those FMUs take to the United States is dangerous, to put it mildly. Here is how then-Acting Secretary Kevin McAleenan described smugglers and their activities in his June 11, 2019, testimony to the Senate Judiciary Committee:

Every single day, smugglers and traffickers profit from human misery by exploiting people who are seeking a better life. These smugglers, many with ties to transnational criminal organizations, may deprive aliens of food and water, physically assault them, and place them in dangerous travel conditions, such as locking them in tractor-trailers while outside temperatures reach 115 degrees.

We've seen large groups of mostly family units from Guatemala traveling on buses through Mexico to the U.S. border in a much shorter smuggling cycle, making the journey in as little as four to seven days.

Still other migrants are trafficked or used as drug mules. Human traffickers have no regard for the health and safety of the migrants who pay them; as a result, many who make the journey become sick, injured, or traumatized.

With respect to the children themselves, here is what the Homeland Security Advisory Council's bipartisan CBP Families and Children Care Panel found in their "Final Emergency Interim Report":

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.

Children are being exploited and placed in danger in many ways —

  • Adults fraudulently claiming parentage to a child to gain entry to the U.S. are increasing.
  • Some children are being re-cycled by criminal smuggling organizations, i.e. returned to Central America to accompany a separate, unrelated adult on another treacherous journey through Mexico to the U.S. border.
  • Human traffickers have extracted additional fees as a form of indentured servitude from FMUs who were released with NTAs and made their way to the interior of the U.S.
  • The risk for commercial sexual exploitation of these children and teens is predictably high and will be very difficult to prevent after transport or release into the interior U.S.

Releasing those FMUs simply sends a message to their home countries that parents there should follow the same path. Would O'Malley really countenance such traumas being inflicted on those children? Probably not, but I doubt many Gonzaga grads go into alien smuggling, and anyway, there would be few political points for him to score by confronting them.

Finally, with respect to O'Malley's statements about "ripping of ... children from their [parents'] arms", I assume that he is referring to the administration's "zero tolerance" policy, under which children were separated by law from parents who were prosecuted (by law) for illegal entry or reentry. In a November 25, 2019, report, the Inspector General for the Department of Homeland Security (DHS) noted that this policy "was in place for only 6 weeks", from May 5 to June 20, 2018, when it was ended by the president by executive order.

Cuccinelli did not, however, show up at DHS until almost a year later, and even then, it was as acting director of U.S. Citizenship and Immigration Services, which does not detain anybody. Before that, he was not even in the administration. O'Malley's beef lies elsewhere.

And, as then-Acting Secretary McAleenan testified in July, under current procedures:

CBP may separate an alien child from his or her parent or legal guardian when they enter the United States if that parent or legal guardian poses a danger to the child, is otherwise unfit to care for the child, has a criminal history, has a communicable disease, or is transferred to a criminal detention setting for prosecution for a crime other than improper entry [section 275 of the INA]. CBP may also separate an alien child from an individual purporting to be a parent or legal guardian in certain circumstances, such as where CBP is unable to confirm that the adult is actually the parent or legal guardian, or if the child's safety is at risk. However, outside of these circumstances, CBP generally keeps family units together in its short-term holding facilities.

Does the former governor really want children placed with unfit parents or strangers, or sent to a place where that child's safety is at risk? Would he want to see serious criminals not prosecuted because they used their children as pawns, not even as a "get out of jail free card", but rather an "avoid the consequences of their criminal actions" card? And, can you imagine what a boon releasing all children to all accompanying adults would be for traffickers? If he does, he may want to pick somewhere other than a bar to make such arguments.

That said, I can blame Martin O'Malley for his choice of targets and his timing, but he is really just repeating uninformed tropes. He should, however, heed the words of the founder of the Jesuits, St. Ignatius Loyola, who said: "He who goes about to reform the world must begin with himself, or he loses his labor."

He can start now. Blather and blarney are not going to change many minds.

Topics: Politics