On October 16, the parties in Ms. L. v. ICE — the so-called “family separation” case — filed three documents: a Joint Motion for Preliminary Approval of Class Action Settlement; an executed Settlement Agreement; and a Notice of Proposed Class Action Settlement. Pay attention to the second one, because it provides any adult who enters the United States illegally with a child in a “family unit” (FMU) virtual immunity from criminal prosecution that Congress never intended. It will also increase the trauma to the kids used by adult migrants and smugglers seeking release into the United States, and the burdens on big cities dealing with their own “migrant crises”.
“Zero Tolerance”, “Family Separation”, and Flores. All of this stems from an extremely short-lived policy in the spring of 2018 known as “zero tolerance”, a Trump-era DOJ policy announced on April 6, 2018, by then-Attorney General (AG) Jeff Sessions under which all adult migrants who entered illegally were to be criminally prosecuted under section 275(a) of the Immigration and Nationality Act (INA).
Up to that point, adults entering illegally in FMUs had little fear of being charged criminally for entering illegally thanks to unwritten DHS policies discouraging agents from referring those aliens for criminal prosecution and because of an unwritten DOJ policy not to accept section 275 cases involving such aliens.
To be honest, most aliens who entered illegally — either before that policy or after — have never been charged criminally, for reasons having little to do with whether they are criminally liable or not.
That’s because criminal prosecution is just one of three tools Congress has given the executive branch to deter illegal entrants. The other two are detention under section 235(b) of the INA, which Congress has mandated for all inadmissible “applicants for admission” (including illegal entrants), and return back across the border to await removal hearings, under section 235(b)(2)(C) of the INA.
Return back was, however, a little-used sanction in the spring of 2018 (it would be the basis for the successful Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, the next year), while under a 2015 district court order in Flores v. Lynch interpreting the 1997 Flores settlement agreement (FSA), DHS could only detain children in FMUs for 20 days. To avoid “family separation”, the adults were usually released as well.
Flores created a perverse incentive for adult migrants to bring a child along when entering illegally because it all-but ensured that they would be quickly released even if they were caught.
The judge who issued that order cared little for such real-world consequences, but they were patent. In FY 2015, when that order was issued, Border Patrol agents apprehended just over 40,000 illegal entrants in FMUs at the Southwest border; by FY 2016, that apprehension total almost doubled, to nearly 77,700.
There was a notable but short-lived “Trump effect” on illegal entries directly after the 45th president took office. In FY 2017, monthly FMU Southwest border apprehensions dipped from more than 16,000 in December 2016 to just 1,118 in April 2017.
As noted, that dip didn’t last, and by March 2018, agents were catching nearly 8,900 FMU migrants at the U.S.-Mexico line per month. In response, AG Sessions implemented zero tolerance, and DHS started sending adult FMU entrants for prosecution.
TVPRA. “Improper entry” under section 275(a) of the INA is a misdemeanor carrying a penalty of six months incarceration and/or a fine for a first offense, and a two-year felony (with a possible fine) for a second or subsequent offense. Most first-time offenders, however, receive time-served for the period that they are awaiting trial.
Generally, when illegal entrants are referred for prosecution, they pass from ICE custody to the custody of the U.S. Marshal’s Service (USMS). Except in extreme cases, however, children are not prosecuted under federal law, and consequently, when those adults were sent to USMS, the minors stayed with ICE.
Except, they didn’t remain there, due to yet another well-intentioned but poorly thought-out policy, this one in section 235 of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), under which they were deemed “unaccompanied alien children” (UACs) and processed out.
The term “unaccompanied alien child” is defined in statute as:
a child who — (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom — (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.
Section 235 of TVPRA, in turn, requires DHS to send all UACs from non-contiguous countries (that is, every country other than Canada and Mexico) to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS) for placement with sponsors in the United States.
The children whose parents were referred to USMS custody had parents or guardians in the United States, but in an abundance of caution, ICE deemed them to be UACs and sent them to ORR.
Logically, following the brief period that those FMU adults were in USMS custody for prosecution under section 275 of the INA, they would have been quickly reunited with their children, but read the reports from the HHS, DHS, and DOJ inspectors general and you’ll see that didn’t happen, almost solely due to incompetence.
A firestorm erupted in the press and in Congress over the issue of “family separation”, and in response, on June 20, 2018, President Trump issued Executive Order 13841, “Affording Congress an Opportunity to Address Family Separation”. That EO directed DHS to detain all adults in FMUs while they were being referred and held for prosecution.
By that point, approximately 3,014 children in FMUs had been separated from adults, but the issue so haunted Trump that the whereabouts of the 545 who had not been reunited with their parents or guardians was the only immigration-related question asked during the 2020 presidential debates (toward the end of the second one, in October).
Ms. L. In February 2018, prior to AG Sessions’ announcement, a Congolese national identified only as “Ms. L” filed a complaint in the United States District Court for the Southern District of California, alleging that she had presented herself at the San Ysidro, Calif., port of entry seeking asylum, and was thereafter separated from her daughter, “S.S.” That matter was assigned to Judge Dana Sabraw.
Ms. L quickly became a vehicle used by immigrants’ advocates to challenge all DHS family separations, and on June 26, 2018, Judge Sabraw issued an order enjoining the government from detaining members of that class without their children, subject to limited exceptions.
As I noted at the time: “That decision will almost definitely force the Trump administration to release alien parents who have entered illegally with children in the long run.” I was more correct than I ever could have assumed.
“It Is a Moral Failing and a National Shame.” Then-candidate Joe Biden hammered the incumbent over the issue, asserting on his 2020 immigration campaign website: “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”.
Consequently, once Biden took office, he made a big show over reuniting “separated” families, even going so far as attempting to take funding meant for ICE officers and Border Patrol agents to pay for it.
All the while, Ms. L was playing out in the background. By the time the settlement agreement was filed on October 16, it was (by my count) the 711th document in the matter filed with Judge Sabraw.
Of course, DOJ is now controlled by AG Merrick Garland, who was hired by the man who decried “family separation” as “a moral failing and a national shame”, which is likely why the Joint Motion assures the court (four different times) that it is the product of “arms-length” negotiations.
In fact, “The Agreement Is the Product of Extended Arms-Length Negotiations Between Well-Informed and Experienced Counsel” is the header for subsection I(b) therein.
“The Limited Permissible Circumstances for Separation”. As a licensed attorney, I will take counsel at their word, but I will note that subsection V(C) in that agreement restrictively binds not just the Biden administration, but future ones, from prosecuting aliens in FMUs for illegal entry under the INA. Specifically, clause V(C)(5) states:
The limited permissible circumstances for separation are the following:
the parent or Legal Guardian is referred for prosecution for a felony (other than for related prosecution based on illegal reentry or prior removals). Where no other permissible circumstances for separation are present, CBP will not refer an adult for prosecution solely under [section 275(a) of the INA] if the adult is traveling with a minor, is the minor’s parent or Legal Guardian, and is the only parent or Legal Guardian traveling with the child.
Note that the termination date for that provision, pursuant to subsection I(P) in the settlement agreement, is eight years after Judge Sabraw accepts the joint motion (assuming he does). Given that the 22nd amendment to the U.S. Constitution prevents a president from serving more than two terms, Biden is effectively barring at least one successor from such prosecutions.
That is an odd posture for an administration — such as this one — that relies so heavily on “prosecutorial discretion” to ignore any congressional immigration mandate with which it disagrees.
Moreover, as the Supreme Court explained in its June opinion in U.S. v. Texas: “Under Article II [of the constitution], the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law’”.
It continued: “That principle of enforcement discretion over arrests and prosecutions extends to the immigration context, where the Court has stressed that the Executive’s enforcement discretion implicates not only ‘normal domestic law enforcement priorities’ but also ‘foreign-policy objectives.’”
Given all that, it’s questionable as a legal matter whether either Biden’s DOJ or Judge Sabraw can bind a future administration — be it headed by President Trump, President DeSantis, President Harris, President Newsom, etc. — from bringing a prosecution under a criminal statute. Courts are loath to interfere with the executive’s exercise of its foreign-policy power, but under the Court’s reasoning in Texas, that’s exactly what clause V(C)(5) in the Ms. L settlement agreement would do.
From the Courtroom to the Real World. Those are the legal ramifications of the Ms. L settlement agreement. If anything, the real-world ramifications are even more significant.
Under clause V(C)(5) in the settlement agreement, no alien can be charged with felony reentry under section 275(a) of the INA so long as that alien enters with a child. As noted, EO 13841 directs DHS to keep adults and children in DHS custody during a prosecution for improper entry, but as is also noted, the sentence for reentry under section 275(a) of the INA is two years.
That would mean that the only way to prosecute a re-offender who entered with a kid would be to detain the child in ICE custody for two years as well, but under Flores, children in FMUs can only be detained for 20 days. Thus, regardless of how flagrantly an alien has violated section 275, that alien would have virtual immunity under the Ms. L settlement agreement.
Worse, section 276 of the INA makes it illegal for an alien who has been ordered removed to reenter illegally, and under subsection (b) therein, if the alien was ordered removed for an aggravated felony — like murder, rape, or sexual abuse of a minor — the maximum sentence is 20 years.
The prospect of a 20-year sentence in a federal correctional institution is a real deterrent to illegal reentry, but it’s also one the settlement agreement in Ms. L could well take off the table, provided the offender brought a child with him or her on the way back in.
There is an exception (in clause V(C)(1) and subsection V(D)) for aliens who pose a “public safety risk”, but it applies only to those aliens deemed to “pose an ongoing risk to public safety”. I’m not sure what that means where an alien reenters after being removed five years ago following a murder conviction, but given the level of litigation in this case, expect it all to have a chilling effect on prosecutions.
A separate exception in subsection V(D) applies “where a determination has been made” that the adult migrant “is subject to a mandatory detention statute prohibiting release because of terrorism grounds or a criminal offense such as” sections 236(c) and 241(a)(2), which mandate the detention of aliens removable and ordered removed, respectively, on criminal grounds. At issue in Texas, however, was the administration’s refusal to detain such aliens under September 2021 “guidelines” issued by DHS Secretary Alejandro Mayorkas, which the Court held the state plaintiffs there lacked standing to challenge. That could likely have a chilling effect, as well.
I have been doing this for more than three decades, all the way from the courtroom to Main Justice, and I can assure you that if Judge Sabraw signs onto that settlement agreement (not that I'm telling the Court what to do), not only will ordinary border scofflaws take advantage of that loophole (as they have taken advantage of Flores), but it will also open the door to an untold number of serious offenders to reenter illegally, as well.
Trauma and Municipal Costs. Not only is all of this bad for our national security and sovereignty, but it’s also bad for the migrant children themselves — and for the cities to which they will travel in the United States.
In April 2019, a bipartisan panel of experts convened by the Homeland Security Advisory Council to look into family and child entries was so concerned about what they uncovered that they felt compelled to issue a “Final Emergency Interim Report”. As they explained therein:
There is a real crisis at our border. An precedented surge in [FMU] migration from Central America is overwhelming our border agencies and our immigration system. This crisis is endangering children. In too many cases, children are being used as pawns by adult migrants and criminal smuggling organizations solely to gain entry into the United States.
...
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.
Criminal migrant smuggling organizations are preying upon these desperate populations, encouraging their migration to the border despite the dangers, especially in remote places designed to overwhelm existing [Border Patrol] infrastructure, and extorting migrants along the way, thereby reaping millions of dollars for themselves and the drug cartels who also charge money to cross the border. [Emphasis added.]
Why, exactly, was there a “real crisis at our border” in which children were being “used as pawns” by smugglers and adult migrants? The panel explained that, too:
By far, the major "pull factor" is the current practice of releasing with a [Notice to Appear, the charging document in removal proceedings] most illegal migrants who bring a child with them. The crisis is further exacerbated by a [] federal court order in Flores ... expanding to FMUs a 20-day release requirement contained in [the 1997 FSA].
If anything, the proposed settlement agreement in Ms. L would simply turbocharge that “pull factor” by also removing any possibility that those “adult migrants” would face prosecution. More trauma, more rapes, more robberies, more hostages, more extortion. And more money for the smugglers and the cartels.
By the way, in April 2019, when the panel issued that report, Border Patrol apprehended fewer than 59,000 aliens in FMUs at the Southwest border. In August, agents there nabbed 93,000-plus FMU entrants — more than in any single month ever.
Further, as I have explained elsewhere, the municipal costs that big cities in the United States are facing are not so much “migrant crises” per se as they are “migrant family crises”. Single adult migrants can normally provide for themselves by working, legally or otherwise. That’s not a real option for a migrant mother with two young children.
By propping the door open to even more FMUs, the settlement agreement in Ms. L would simply cause those municipal costs — for housing, food, clothing, education, and medical care — to surge to even higher levels.
“An Error Does Not Become Truth by Reason of Multiplied Propagation”. The judge who issued that 2015 Flores order began with the following quote, from Mahatma Gandhi: “An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it.”
The concept that Congress, the courts, and the administration are somehow helping migrant children by encouraging their parents and guardians to use them as “pawns” during their own illegal entries to the United States defines an “error of multiplied propagation”. But unfortunately, it’s one that the Biden administration is seeking to propagate, yet again.
Note: This post has been edited since its original posting.