ABC News reported this week that some 15,000 unaccompanied alien children (UACs) are now in federal custody, 5,000 of whom are detained in Border Patrol facilities. Worse, according to the outlet, one single Border Patrol facility in Texas “designed to accommodate 250 children and teens ... is now crowded with 3,900 kids”. The detention of migrant children was the president’s first border problem and it's well past time for Congress and the White House to remove the incentives that draw UACs here.
The Unaccompanied Alien Child Surge and the TVPRA. The UAC detention crisis should not come as a surprise. Border Patrol apprehended nearly 145,000 UACs in FY 2021, and some 125,000 of them were allowed to remain in the United States, according to testimony from DHS Secretary Alejandro Mayorkas before the Senate Judiciary Committee in November.
That nearly doubled the prior record for UAC apprehensions, set during the “border emergency” in FY 2019, when Border Patrol caught just over 76,000 UACs who had entered illegally. As then-DHS Secretary Kirstjen Nielsen explained at that time:
In the past, the majority of migration flows were single adults who could move through our immigration system quickly and be returned to their home countries if they had no legal right to stay. Now we are seeing a flood of families and unaccompanied children, who — because of outdated laws and misguided court decisions — cannot receive efficient adjudication and, in most cases, will never be removed from the United States even if they are here unlawfully. The result is a massive ‘pull factor’ to our country.
The “outdated law” encouraging the entry of those UACs — as I have explained in the past — is the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). It directs DHS to release UACs who are not Canadian or Mexican nationals (i.e., are from "non-contiguous countries") to the custody of the Office of Refugee Resettlement in the Department of Health and Human Services (HHS) within 72 hours, most for placement with “sponsors” in the United States.
Once placed with sponsors, most UACs never leave the United States. According to DOJ, the median UAC removal case has been pending with the immigration courts for 1,141 days — more than three years — and the median completion time for a removal proceeding involving a UAC is 1,639 days, or just under 4.5 years. As of February 2018, just 3.5 percent of all UACs apprehended had been removed.
President Obama called on Congress to fix this TVPRA loophole for UACs from those “non-contiguous” countries in June 2014, and even the editorial board of the Washington Post admitted: “Inadvertently, [the TVPRA] has encouraged thousands of Central American children to try to reach the United States by granting them access to immigration courts that Mexican kids don’t enjoy.”
Despite this, Congress has done nothing. Not surprisingly, of the UACs apprehended by Border Patrol in FY 2021, more than 120,700 were from “non-contiguous” countries.
This trend has continued into FY 2022 (which began on October 1). In October and November, Border Patrol agents apprehended more than 22,000 UACs who were not Canadian or Mexican nationals. While CBP has yet to release numbers for December, it appears from ABC News’ reporting that UAC apprehensions have simply surged even more in the interim.
Biden Administration’s Struggles with Detained UACs. Nor, as noted above, is this the first time that the Biden administration has been faced with massive numbers of UACs in immigration custody. In fact, housing and caring for UACs apprehended by the Border Patrol was a problem for the president right out of the gate.
In the first full month of Biden’s presidency, February 2021, the UAC surge began. That month, Border Patrol agents apprehended more than 9,250 UACs, a 62 percent increase over the previous month, and the fourth-highest monthly total ever to that point. UAC apprehension records go back to October 2009, because before passage of the TVPRA, UACs were not a big problem.
Only during the “Central American child and family migrant crisis” in the months of May and June 2014 (in which more than 10,500 UACs were apprehended each month) and at the height of the “border emergency” in May 2019 (11,475) had apprehensions ever broken the 9,000 mark.
That said, the months of May and June are prime travel season for illegal migrants at the Southwest border. While apprehensions traditionally climb in February, they are far from their usual peak.
In response, however, the Biden administration announced in February that HHS would be opening a facility for the detention of migrant children in Carrizo Springs, Texas. Immigrant advocates howled, with one contending that it was “unnecessary, ... costly, and ... goes absolutely against everything [President] Biden promised he was going to do”, but I defended the action in a post that month.
As I explained, HHS had only limited shelter space for UACs (13,200 beds), and pandemic restrictions limited the department’s ability to utilize all of it. And it was not as if the administration could simply turn those children out on the street.
At the time, however, I noted that the number of UACs showing up at the border was unusually high for that time of year, “suggesting a surge of UACs to follow in the spring”. I was right.
By March, UAC apprehensions had more than doubled, to 18,700-plus. That month, pictures began to emerge of detention facilities for children and families, showing crowded conditions with children lying on the floors of soft-sided tents, wrapped in Mylar blankets. The optics were bad, and it was a black eye for the president’s immigration stance.
By May, UAC apprehension numbers were still bad (13,878), but the Biden administration had begun to ramp up HHS’s capacity to hold UACs. To celebrate, DHS issued a series of photos showing less crowded facilities that month.
Rep. Henry Cuellar (D), who represents a border district in south Texas, contended, however, that those pictures only told part of the story. He accused the Biden administration of playing a “shell game” by moving children from the then-largely vacant CBP housing into similar HHS shelters.
At the same time, concerns were raised about how quickly HHS was releasing children to sponsors, and about the government’s ability to keep track of the children it had released.
In a May post captioned “Reports Suggest HHS Is Cutting Corners in Vetting Sponsors of Migrant Children”, I explained that the Biden administration was under pressure to speed UACs out of custody, but that doing so risked cutting corners in the vetting of sponsors and their household members. Problems had occurred when vetting was truncated in the past, as I explained, and were likely to reoccur if sponsors and their household members weren’t properly checked out in advance.
By September, reports emerged that the government had “lost contact” with approximately one-third of the UACs that it had released to sponsors between January and May, and had been delinquent in performing follow-up checks.
While the Trump administration was hammered when it could not account for about 1,475 UACs who had been released in 2018, and despite the fact that the number of children “lost” under the Biden administration was about three times as high as under Trump, the issue passed with little comment — although there is no reason to believe that it has been resolved.
The Current Situation. This brings us back to the 5,000 children who were in Border Patrol custody as of January 3. They don’t belong there, and it is the responsibility of the U.S. government — not any one party or the current administration — to get them out as quickly as possible.
It is also the duty of the government — Congress and the president — to discourage UACs from making the perilous trek from their homes to enter the United States illegally. That means removing the incentives that encourage them — or more often their parents and other family members who are present in the United States — to pay the smugglers who bring them.
Congress and the White House should heed then-President Obama’s June 2014 call to allow DHS greater flexibility in removing unaccompanied alien children, regardless of where they are from. Travel season for illegal migrants has not even begun; 5,000 kids in Border Patrol custody on January 3 should be a warning to leaders on both ends of Pennsylvania Avenue that now is the time to act to close the TVPRA loophole that will encourage more to follow.