In April, Border Patrol apprehended almost 17,000 unaccompanied alien children (UACs) who had entered illegally at the Southwest border. Those apprehensions came on top of more than 18,700 UAC apprehensions in March, and 9,270 in February. Removal cases involving those children — which move extremely slowly in the immigration courts — are swelling those courts’ already overloaded dockets.
First, and no matter how the administration or the press spins the UAC situation at the border, it is an unprecedented disaster. The unaccompanied child apprehension numbers in March were the highest monthly total for which Border Patrol keeps records (back to October 2009, more on that below). April came in a close number two.
Second, the Biden administration is in seeming denial as to why so many children are entering illegally now, and is blaming exclusively external factors — not law, policy, and the president’s rhetoric, which are much more likely sources.
For example, in May 13 testimony before the U.S. Senate Homeland Security and Governmental Affairs Committee, DHS Secretary Alejandro Mayorkas claimed: “Since April 2020, the number of encounters at the border has been rising due to ongoing violence, natural disasters, food insecurity, and poverty in the Northern Triangle countries of Central America.”
Unfortunately, violence, natural disasters, and nutrition have all been issues in those Northern Triangle countries of El Salvador, Guatemala, and Honduras for decades (if not centuries). Plus, although the Covid-19 pandemic and government responses thereto have affected the economic situation in those countries, every country’s economy (including the United States’) has seen a dramatic downturn.
Given this, there must be some other factor or factors that are driving the current UAC surge. And there are.
I have previously explained how section 235 of the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA) encourages unaccompanied children from every non-contiguous country (that is, countries other than Canada and Mexico) to enter this country illegally. Border Patrol can quickly return UACs from Canada and Mexico back home if they do not have asylum claims and have not been trafficked. The rules are different, though, for unaccompanied children from non-contiguous countries, and in particular the Northern Triangle countries Mayorkas referenced.
Those UACs must be handed over to the Department of Health and Human Services (HHS) for placement in HHS shelters. Most are eventually placed with “sponsors” in the United States.
The vast majority of those sponsors have historically been here illegally and, according to Mayorkas, 90 percent of those children have a parent or legal guardian in the United States. Who do you think pays the smugglers and makes the arrangements for eight-year-olds to travel illegally from Central America?
Those non-contiguous UACs are not subject to expedited removal (as adult migrants who enter illegally are), but rather they must be placed into removal proceedings.
Or, as the Washington Post put it back in August 2014: “Inadvertently, [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.”
Candidate Joe Biden promised that he would reverse Trump administration policies that impeded the illegal entry of migrants (and in particular migrant children) if he became president, and although as president he has maintained Trump-era CDC orders under Title 42 of the U.S. Code that direct illegal migrants to be quickly expelled, he has lifted Title 42 orders for UACs.
Thus, U.S. policy and law have almost definitely been larger drivers of the current UAC surge than chronic crime and poverty (or even acute weather and Covid-19 effects) in the Northern Triangle.
There are additional facts — many of which relate to the UAC backlog in the immigration courts — that show this to be true.
TVPRA was passed on December 23, 2008 (a quick two weeks after it was introduced, and almost two months into FY 2009). In FY 2008, Border Patrol apprehended fewer than 10,000 unaccompanied children at the Southwest border. In FY 2009, that number more than doubled to 19,668 (82 percent of whom were from Mexico, and 17 percent from the Northern Triangle).
UAC apprehensions fell slightly in FY 2010 (18,411) and FY 2011 (15,949), before skyrocketing in FY 2012 (24,403), a 53-percent increase over the year before. By FY 2014, Border Patrol UAC apprehensions reached 68,541 — a 330-percent increase in just five years.
By FY 2019, UAC apprehensions at the Southwest border exceeded 76,000, and the demographics had reversed: Just 13 percent of the unaccompanied children apprehended that year were from Mexico, while 85 percent were from the Northern Triangle.
Between February and April of 2021, almost 37,000 of the 44,936 UACs apprehended at the Southwest border (82.3 percent) were from El Salvador, Guatemala, and Honduras (14 percent were Mexican nationals, less than 4 percent were from somewhere else).
Few if any Canadian UACs enter illegally (numbers are not available), and UAC apprehension numbers are not publicly available for any year prior to FY 2008 — largely because, until the passage of TVPRA, there were not that many unaccompanied children entering illegally. TVPRA, therefore, appears to be driving illegal entries.
The increase in UACs from non-contiguous entering illegally after passage of TVPRA is also reflected in immigration court statistics. In FY 2008, there were 3,171 pending cases involving unaccompanied children. That number steadily increased between FY 2009 (3,243), FY 2010 (3,960), FY 2011 (4,273), FY 2012 (5,413), and FY 2013 (6,642, more than double the number in FY 2008).
Then in FY 2014, the number of pending UAC cases really took off, reaching 18,574—almost six times as many as just seven years before.
That number more than doubled again by FY 2017 (68,186), and broke into six digits in FY 2020 (101,888; it stood at 103,872 by March 2021, the latest point for which statistics are available).
The increase in UACs from non-contiguous countries entering illegally is plainly the main factor driving the increase in removal cases involving unaccompanied children — but not the only one.
According to TRAC, a private statistics group affiliated with Syracuse University, the average case in immigration court has been pending for 934 days (that's two years and 204 days).
The latest immigration court statistics, on the other hand, reveal that more than 55,000 UAC cases have been pending for between two and five years, and more than 16,000 have been pending for more than five years.
The current median pending time for immigration court cases involving UACs is 1,125 days (three years and 30 days), and the median completion time for those cases is 1,664 days — four years and 204 days.
That is the median. The pending time for those cases would be a lot higher if so many UACs had not been ordered removed in absentia when they failed to appear in court. Those UAC respondents have accounted for 26,056 completions since FY 2017.
Most alien respondents fail to appear at the first or second hearing, meaning that those cases cut deeply into the real median completion time.
Why do UAC cases take so long to complete? Unlike most arriving aliens, they can apply for asylum before U.S. Citizenship and Immigration Services even while their removal cases are pending in immigration court. They are also eligible to seek green cards under Special Immigrant Juvenile (SIJ) status through a special carve-out in the Immigration and Nationality Act (also expanded by TVPRA).
Removal proceedings are usually continued while those asylum applications and SIJ petitions are pending. That takes time, and exacerbates the immigration court backlog, which currently stands at more than 1.32 million cases (there are 539 immigration judges (IJs), meaning the average IJ is handling 2,454 cases).
As more unaccompanied children from non-contiguous countries cross the Southwest border illegally, these numbers are just going to get worse. The backlogs before the immigration courts are going to swell with cases that will take years to complete, the median completion time for those cases is going to rise, and valid asylum claims are going to get pushed to the back burner.
It does not have to be this way. President Obama, in June 2014, asked Congress to fix the loophole in the TVPRA that discriminates in favor of UACs from non-contiguous countries, and that call was recently taken up by two key congressional Republicans.
As long as Mayorkas and other Biden administration officials blame institutional factors in the Northern Triangle for the current UAC surge, however, that surge will continue, to the detriment of the immigration courts, valid asylum seekers, and the children themselves.