UACs and HHS: 17 Years of What Not to Do

Of exploding whales and cruelty toward children

By Andrew R. Arthur on November 15, 2019

In a recent post, I discussed an opinion piece published at CNN by Sen. Richard Durbin (D-Ill.) and Rep. Zoe Lofgren (D-Calif.) captioned "The Supreme Court and Congress must defend Dreamers". The two begin: "For the last two and a half years, President Donald Trump has led a campaign of unprecedented cruelty towards immigrants, especially children." Curiously, neither takes responsibility for that "cruelty towards ... children". They should not have been so modest. The story reflects what happens when government is faced with a problem and answers with a bad response.

First, let me state the obvious: I like kids. I have one myself, and have spent significant time coaching boys in two separate sports. "Coaching" in this case should properly be put in quotation marks, because while I left the technical aspects of those sports to men who were more skilled, I focused on ensuring the safety of our young charges: making sure they had the right equipment, minimizing the risk of injuries, and attending to the few injuries that did occur.

In addition, as an immigration judge, I had jurisdiction over what was (at the beginning, at least) the only facility in which children were detained: the Berks Family Shelter, near Reading, Pa. I followed the protocols for dealing with young respondents, speaking to them in simple, non-legal terms, and occasionally removing my robe so as to make the proceedings less intimidating and more interactive.

Turning back to the CNN piece, there is actually a hyperlink to the pair's assertion about cruelty toward children. The article that is linked is captioned "Trump administration admits it lost track of nearly 1,500 immigrant children", from September 2018. Read past the headline and you find the following:

The Trump administration again could not determine where nearly 1,500 immigrant children were over a three-month period this year, the second time in less than a year that it admitted it had lost track of hundreds of undocumented children released from US custody.


The lack of certainty about where the children are does not necessarily mean they are lost. It could be as simple as no one in the home picking up the phone when Health and Human Services [HHS] called or not responding to a message. It's possible that some of the families are undocumented and avoiding the government. But it is also possible the children could have ended up with traffickers or people meaning to do them harm.

That article notes that this is the second time that HHS has lost track of children it had released. I wrote about the first instance in June 2018, in a post captioned: "The Last Word on 1,475 'Lost' Children, They're not lost, and releasing more will simply encourage more to come".

With respect to the 1,488 children who were the subject of the more recent, hyperlinked article, the same is almost definitely true as well. On April 11, 2019, Sen. James Lankford (R-Okla.) issued a press release captioned "Lankford, Portman, Blumenthal, Carper Reintroduce Bill to Improve Care & Safety for Unaccompanied Minors, Accelerate Immigration Court Proceedings", which discusses legislation the Sooner-state senator has sponsored with Sens. Rob Portman (R-Ohio), Richard Blumenthal (D-Conn.), and Tom Carper (D-Del.). Lankford explains:

Since October 2014, HHS has placed more than 183,000 [unaccompanied alien minors (UACs)] with adult sponsors in the United States while they wait for their immigration court proceedings. Since 2015, the Permanent Subcommittee on Investigations (PSI), on which Lankford serves, has been conducting oversight of HHS' program to place unaccompanied minors with sponsors in this country following reports that HHS placed eight unaccompanied minors with human traffickers who put those children into forced labor in Ohio. PSI, led by Chairman Portman and Ranking Member Carper, has documented its findings in two reports, one released on August 15, 2018 and the other on January 28, 2016. PSI learned that no agency takes responsibility for enforcing sponsor agreements to care [for] these children once HHS places children with sponsors. HHS has started calling the children 30 days after placement. In April 2018, the Subcommittee learned that out of 7,635 calls made from October to December 2017, 28 children had run away from their sponsors, and HHS could not determine with certainty the location of 1,475 of them. The FY18 Q3 results were similar. From April 1 to June 30, 2018, HHS tried to call 11,254 UACs and their sponsors. Twenty-five had run away from their sponsors, and HHS could not determine the whereabouts of 1,488 of those children. [Emphasis added.]

Was the Trump administration responsible for the eight unaccompanied minors whom HHS placed with human traffickers, resulting in those children being used for forced labor in Ohio? No, that happened in 2014, as the Washington Post reported in a January 26, 2016, article captioned "Overwhelmed federal officials released immigrant teens to traffickers in 2014". I explained that situation in depth in a June 2018 post, and you can read about it there.

There are two points to be made, however. First, contrary to the contentions of Durbin and Lofgren, HHS's problems are no more proof that "President Donald Trump has led a campaign of unprecedented cruelty towards immigrants, especially children," any more than the Ohio case suggested that President Barack Obama was involved in the trafficking of minors. In both cases, poorly thought-out policies placed a federal-government department in charge of caring for UACs — a department that had no experience in dealing with children to begin with.

The second raises the question of who decided it was a good idea to place UACs with HHS to begin with? As I stated in the 2018 post:

Under section 462 of the Homeland Security Act of 2002 [HSA], HHS makes placement determinations for unaccompanied alien children. Under recent interpretations of a 1997 settlement agreement in Flores v. Reno, there is a presumption that apprehended alien minors (even those arriving with parents) will be released to HHS within 20 days.

And, as I explained in an opinion piece in USA Today:

A Democrat-sponsored 2008 trafficking law divides unaccompanied children into two groups: Canadians and Mexicans (who can be returned quickly), and everybody else. The latter go to HHS, even if they haven't been trafficked, and aren't unaccompanied because they have family here. They must be "placed in the least restrictive setting", usually meaning release to family members.


I was present when the decision was made to assign this task to HHS, and to say that it was poorly and hastily considered would be a significant understatement. That the department has done as good a job as it has is more astounding than the fact that more than 1,475 sponsors failed to respond to the department's calls.

With respect to the last paragraph, in July 2002, the House Judiciary Committee (on which I was oversight counsel) marked up the HSA. It has been 17 years, but my recollection (the committee markup is not available online) is that Rep. Lofgren introduced the amendment that added section 462 (transferring placement decisions over UACs) to HHS. Why would I recall one amendment almost two decades ago? I remember all the bad ones, and I knew it was bad at the time.

In any event, it was a Democratic amendment, and she was on the committee at the time, so she bears responsibility for it, one way or another. Lofgren was also a cosponsor of the aforementioned 2008 bill, the "William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008".

So, why choose HHS for this responsibility? I have no idea, except for the fact that the Office of Refugee Resettlement (ORR) in HHS has long been responsible for arranging benefits for newly admitted refugees — not exactly akin to placing tens of thousands of UACs. But, as I have previously stated:

I don't think that HHS ever asked to be the caretaker of 10,000 alien children, and nothing in their mission statement suggests that they would be any good at the job. Why not assign it to the Postal Service or the Department of Energy? Anybody except those evil, evil people in the former INS who were skilled at it. This is akin to having a painter wire your house and then complaining when it burns down.

This poorly thought-out decision reminds me of an incident that occurred 49 years ago this week, when the carcass of a 45-foot, eight-ton whale washed up on a beach outside the town of Florence, in Lane County, Oregon. Officials were unsure what to do with the deceased cetacean, because they had not encountered a similar situation in recent memory. So, the State Highway Division was called in, and they decided to blow it up with 1,000 pounds of dynamite.

The thinking was that the explosives would reduce the whale to pieces that could be eaten by seagulls and other scavengers. It did not work out that way. Instead, large pieces of blubber fell on top of onlookers (who had been moved more than a quarter-mile away out of caution), and flattened a Cadillac. Local CBS-affiliate KVAL explained:

[T]he State of Oregon footed the bill to replace the family car — and learned never to blow up a whale again.

"It might be concluded that should a whale ever was[h] ashore in Lane County again, those in charge will not only remember what to do," [former KATU reporter Paul] Linnman said in his now infamous report. "They'll certainly remember what not to do."

The now-17-year-old UAC placement policy has been about as effective as the Oregon Highway Division's efforts. For the first nine years that ORR ran it, the UAC Program served fewer than 8,000 children. HHS reports, however that:

Since Fiscal Year 2012 (October 1, 2011 – September 30, 2012), this number has jumped dramatically, with a total of 13,625 children referred to ORR by the end of FY 2012. The program received 24,668 UAC referrals from DHS in FY 2013, 57,496 referrals in FY 2014, 33,726 referrals in FY 2015, 59,170 in FY 2016, and 40,810 in FY 2017. In FY 2018 49,100 UAC were referred.

Through just the first 10 months of FY 2019, according to the Congressional Research Service (CRS), more than 60,000 UACs were referred to ORR. There is no doubt in my mind that there is a direct connection between a program that resettles almost every UAC who arrives in the United States with families and friends here, and this vast increase in UAC referrals to HHS.

And for all of its bloviating, Congress has failed to adequately fund the program it created. The White House asked for additional funding to handle the onslaught of UACs in May 2019, and even I had to beg Congress for the funding, in no fewer than five posts and numerous interviews. They finally coughed up the money in late June. Shame on every member of Congress and shame on a national media that failed to report responsibly on the issue and explain it to the American people.

As for the sponsors to whom those UACs were released? Most of them (78.7 percent during one six-month period for which statistics are available) 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." And, as I have noted: "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." Policies Congress has established make the U.S. government a coconspirator in these smuggling schemes.

Those children suffer on the journey to the United States, as the April 16, 2019, "Final Emergency Interim Report" from the Homeland Security Advisory Council's CBP Families and Children Care Panel explains. Here is a one-line takeaway: "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." That is, if they are lucky enough to make it to the United States to begin with.

Back to Oregon and the whale. The UAC Program has shown what not to do with alien children who are apprehended entering illegally along the Southwest border, but Congress has not learned or recognized all the problems that the program it created has caused. They could take a page from the Oregon State Highway Division, and "remember what not to do." And start undoing it.