- Migrants enter illegally for many different reasons. Push factors (such as poverty, crime, and corruption) in their home countries definitely give them an impetus to leave.
- A review of the patterns of illegally entry — and in particular illegal entry by unaccompanied children and families — however, reveals that U.S. laws and policies have created much stronger pull factors, which encourage those migrants to leave their homes and enter illegally.
- The illegal journey to the United States does not just undermine our sovereignty; it takes a significant human toll on migrants, and in particular migrant children, on both sides of the border.
- Congress and the Biden administration can, and should, close those legal and policy loopholes.
- The legislative branch can amend the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA) to allow for the swift repatriation of all unaccompanied children who don’t have asylum claims and haven’t been trafficked, as President Obama requested in 2014.
- Congress can roll back judicial interpretations of the Flores settlement agreement, as a bipartisan federal panel recommended in 2019, to make clear that agreement applies only to the detention of unaccompanied children, as it was originally interpreted to do.
- And the Biden administration can either detain all arriving aliens who claim a fear of return until their asylum claims can be adjudicated — as section 235(b) of the INA requires — or return those migrants back to Mexico to await their court dates, as the Trump administration did in MPP.
- Only by taking these three steps will Congress and the administration be able to alleviate the suffering at the Southwest border — and the suffering that the American people don’t see on the trip to the United States.
In my last post, I examined a March piece from the Council on Foreign Relations (CFR) assessing “Why Central American Migrants Are Arriving at the U.S. Border”. That piece focused almost exclusively on “push factors”, but failed to address “pull factors”, and in particular loopholes in U.S. law, drawing migrants to enter illegally. Those pull factors are stronger and much easier for the U.S. government to address.
Migration, Magnets, and Loopholes
Briefly, immigration — legal and illegal — is influenced both by “push factors” that prompt foreign nationals to leave their home countries, and “pull factors” that encourage them to come here.
Three main loopholes in U.S. law and policy are secondary “magnets” drawing foreign nationals to enter this country illegally: Administrative policies favoring — in contravention of statute — the release of aliens who have entered illegally and claimed “credible fear”; the unequal treatment of unaccompanied alien children (UACs) in the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA); and novel judicial interpretations of the 1997 Flores settlement agreement.
Those are “secondary”, because the main magnet that is drawing most migrants to enter illegally is the United States itself.
More than 85 percent of the migrants apprehended by the Border Patrol at the Southwest border in March came from four countries: Mexico, El Salvador, Guatemala, and Honduras. In an April 2 post, I explained how workers from each of those countries (and in particular low-skilled workers) can earn much higher wages in the United States than they can back home.
In addition, no citation is needed for the proposition that the United States as a whole is safer, that the schools are better, and that medical care is superior and more available in this country than it is in any of those four. And, as that CFR article explains, many of the migrants from those countries already have family here.
The United States does not want to make itself less attractive to migrants by lowering its standards of living, education, or healthcare, and I doubt that we could remove the family members of those migrants who are here even if we wanted to (which, aside from those here illegally, I don’t support).
But Congress and the administration could turn off those secondary magnets by closing the loopholes in our laws, and do so quickly and easily. Here’s why they should do so, and how.
Releasing Aliens with a Credible Fear of Persecution
Under section 235(b) of the Immigration and Nationality Act (INA), aliens apprehended by U.S. Customs and Border Protection (CBP) entering illegally or without proper documents at the ports are subject to “expedited removal”, meaning that they can be quickly removed without receiving removal orders from an immigration judge (IJ).
If an arriving alien claims to fear harm or asks for asylum, however, CBP must hand the alien over to an asylum officer (AO) from USCIS for a “credible fear” interview. Credible fear is a screening process to assess whether the alien may have an asylum claim, and thus proving credible fear is easier than establishing eligibility for asylum. If the AO finds the alien does not have credible fear, the alien can ask for a review of that decision by an IJ.
Where the AO or IJ makes a positive credible fear determination, the alien is placed into removal proceedings to apply for asylum before an IJ. Most aliens who have claimed a fear of return in the past received a positive credible fear assessment (83 percent between FY 2008 and FY 2019), but less than 17 percent of those who received a positive credible fear assessment were ultimately granted asylum.
Under section 235(b) of the INA, aliens found to have credible fear are supposed to be detained until their asylum claims are adjudicated. In December 2009, however, ICE leadership issued a policy directive that aliens found to have credible fear determination should generally be granted “parole” and released from detention under the circumscribed release authority in section 212(d)(5)(A) of the INA.
The number of aliens claiming credible fear climbed thereafter, as smugglers recognized an avenue by which migrants could enter illegally and still have the opportunity to stay — even if they were caught — by claiming a credible fear of return.
For example, in FY 2009, asylum officers completed just over 5,500 credible fear cases. That number more than doubled to 11,716 by FY 2011, and then more than tripled again to 36,454 in FY 2013. In the migrant “crisis” of FY 2019, USCIS received 105,439 credible fear claims — more than 18 times as many as it received in FY 2009.
That Obama-era directive resulted in so many credible fear claims that the detention required under section 235(b) of the INA would have been prohibitively expensive by FY 2019, and for many migrant families, would not have been legally permissible for reasons explained below.
The Trump administration effectively implemented that requirement, however, in its 2019 Migrant Protection Protocols (MPP, better known as “Remain in Mexico”). Some 68,000 migrants who had claimed credible fear were returned to Mexico under MPP, and paroled into the United States to make asylum claims. If they were granted asylum, they were admitted, but if denied, they weren’t.
Like the detention requirement in section 235(b) of the INA, MPP ensured that only aliens who received asylum were allowed to live and work in the United States. Under MPP, between July and September 2019, the number of credible fear claims USCIS received dropped 59 percent.
Then-candidate Joe Biden derided MPP (and as president, Biden ended that and other Trump border initiatives), but he could always re-implement it. Alternatively, Congress could fund sufficient detention space to comply with the non-release requirement in section 235(b). Both detention and MPP deter fraudulent and otherwise worthless asylum claims.
Families and Unaccompanied Alien Children at the Heart of the Migrant Crisis
Unaccompanied children and migrant families are at the heart of the current border crisis. Their numbers surged in March, and the government is scrambling to find detention space for them, but their cases take longer to complete, and they are more difficult to remove.
Plus, while Trump-era orders issued by the Centers for Disease Control under Title 42 of the U.S. Code beginning in March 2020 enable DHS to quickly expel illegal migrants back to Mexico, the Biden administration refuses to repatriate UACs under Title 42, and non-Mexican families can only be expelled if Mexico agrees to their return (which increasingly of late, it is refusing to do).
There may be many reasons why children and families are entering illegally, but there is bipartisan agreement that the unequal treatment of children in the TVPRA and judicial decisions interpreting the Flores settlement agreement are huge pull factors.
The biggest problem with TVPRA is that it discriminates on the basis of nationality.
DHS can quickly screen and remove UACs from Mexico and Canada if they have not been trafficked and have no fear of return home.
That department, however, has to place unaccompanied children from all other countries into removal proceedings and send them to the Office of Refugee Resettlement in the Department of Health and Human Services, generally for placement with a “sponsor” in the United States.
In 2017, DHS disclosed that most (about 60 percent) of the sponsors of UACs were their own parents also here illegally, and the Senate disclosed in April 2019 that almost 79 percent of all UACs were sent to sponsors who were, again, here illegally, during one six-month period it studied.
As I stated in a March 22 post: “If you want to know why 29,010 UACs have been apprehended by Border Patrol in FY 2021, start with the parents who are illegally here.” CBP reported thereafter that 18,633 more UACs were apprehended by Border Patrol at the Southwest border in March (only 13.1 percent of whom were Mexican nationals — Canadian numbers, if they exist, were not reported), and the point is still valid.
Facing his own surge of unaccompanied alien children, then-President Barack Obama asked Congress in June 2014 to give DHS “additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador”, that is, to end the unequal treatment of UACs who aren’t from Canada or Mexico in TVPRA.
Even the editorial board of the Washington Post admitted in August 2014 that TVPRA had “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”.
Sen. Chuck Grassley (R-Iowa), ranking member on the Senate Judiciary Committee, and his House Judiciary Committee counterpart, Rep. Jim Jordan (R-Ohio), sent a letter to President Biden on April 15, asking him if he agreed with his old boss on the need to fix the TVPRA.
Biden should, because the unequal treatment of children in the TVPRA creates a powerful magnet that encourages parents illegally here to pay smugglers to bring their children to the United States. That recklessly endangers those children, as recent events have shown, and there is bipartisan agreement that the Biden administration is not doing a great job housing them.
Congress can easily plug that loophole (as it should), by amending TVPRA to treat unaccompanied children who aren’t from Mexico or Canada the same way it treats those who are. It should act quickly: On April 20, UNICEF reported a “sharp rise in migrant children in Mexico”, and DHS expects up to 26,000 UACs to enter illegally by September.
Flores and Families
As for the families, there is also bipartisan agreement that federal court decisions in 2015 and 2016 interpreting the 1997 Flores settlement agreement are encouraging adult migrants to bring children with them on the dangerous trek to the United States.
In a January 11 post, I explained how that settlement agreement — which originally applied only to unaccompanied alien children — was judicially expanded to include children accompanied by adults entering illegally in “family units” (FMUs), in decisions expediting those families’ release from custody.
Briefly, however, the Obama administration was faced with a surge of migrant families in FY 2014, when the number of aliens in FMUs apprehended by Border Patrol at the Southwest border increased 360 percent from the year before, to 68,445.
Under Flores, children are supposed to be placed in licensed shelters, but Obama had so many families that the administration was placing them in unlicensed facilities (including on at least three military bases), and allegedly refusing to release many of them in order to dissuade other illegal entrants.
The Flores plaintiffs went to the district court judge overseeing the settlement agreement to stop that detention. In August 2015, she held (over the government’s objections) that Flores covered the detention of accompanied children, and ordered that both they and their parents be released within 20 days of apprehension.
The Obama DOJ appealed that decision, and in July 2016, the Ninth Circuit sustained the 20-day release requirement for the children, but not the parents who brought them. To avoid “family separation”, the parents have usually been released, too.
Seeing a new loophole, smugglers encouraged migrants to bring a child with them when entering the United States illegally, and by FY 2019, the number of aliens in family units apprehended by agents at the Southwest border had mushroomed to 473,682 — an almost 600-percent increase over FY 2014.
Correlation may not indicate causation, but there is no analysis that I have seen that would suggest that this increase resulted from anything other than the 2015 and 2016 Flores decisions. In fact, a bipartisan federal panel tasked with assessing the care of children and families in CBP custody during an earlier “border emergency” in 2019 basically made the same determination.
In its April 2019 report, that panel found that “[b]y far, the major ‘pull factor’” drawing families to enter illegally was the then-“current practice of releasing ... most illegal migrants who bring a child with them” with just a Notice to Appear (NTA, the charging document in removal proceedings), “further exacerbated” by the 20-day release requirement in Flores.
Not to disagree in any way with that assessment, but the policy of releasing migrant families with an NTA was largely a direct result of the Flores decisions, too.
That’s because U.S. Immigration and Customs Enforcement (ICE, which is responsible for detaining most migrants released from CBP processing) didn’t invest in detention space for FMUs after those Flores decisions were issued, knowing the agency had to release families in 20 days, anyway. That panel reported, in fact, that ICE had only had enough detention space for 2,500 migrant family members.
Before 2011, 90 percent of arriving aliens were single adult males, and before 2009, 90 percent were from Mexico. Those migrants can be quickly processed and removed, and so Border Patrol facilities were largely built to accommodate them — not for long-term detention of families.
CBP therefore can’t detain large numbers of migrant families for long, and because ICE didn’t have space for them either, CBP began releasing families after processing with NTAs in lieu of placing them in expedited removal.
That problem has only gotten worse during the current border crisis, as CBP is now releasing migrants without even giving them an NTA because it lacks the space to detain them long enough to process them. Instead, apprehended migrants are simply being told to report to the local ICE office at their destinations in the United States.
There is no reason to believe that ICE will even be aware that those aliens are present in the United States unless and until the aliens report to the agency (which many won’t do). That means an untold number of aliens will be at large in this country, with no effective way to keep track of them.
As a consequence, this Flores-created pull factor will only get stronger, encouraging an even greater number of foreign nationals to grab their children and attempt to enter the United States illegally. That will result in even more suffering, which was described by that bipartisan panel:
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.
Enough is enough. That panel recommended that Congress “fix” the Flores decision by rolling it back to “exempt children accompanied by a parent or relative, who is acting as the guardian of the child”. It failed to do so, but it should.
In fact, bills introduced recently by Sen. Jim Inhofe (R-Okla.) and Rep. Kevin Hern (R-Okla.) would implement this proposal, by excluding from the Flores settlement agreement aliens subject to mandatory detention — including, under section 235(b) of the INA, arriving aliens apprehended entering illegally.
That would turn off the judicially created Flores magnet that is encouraging parents to make the treacherous journey to the United States with their children. Plus, those bills would ensure migrants with valid asylum claims could seek protection — they would just have to seek it in ICE custody.
Migrants enter the United States for many different reasons. Push factors (such as poverty, crime, and corruption) in their home countries definitely give them an impetus to leave.
A review of the patterns of illegally entry — and in particular illegal entry by unaccompanied children and families — however, reveals that U.S. laws and policies have created much stronger pull factors that encourage those migrants to leave their homes and enter this country illegally.
That illegal journey to the United States does not just undermine our sovereignty; it takes a significant human toll on migrants and in particular migrant children.
Congress and the Biden administration can, and should, close those loopholes. The legislative branch can amend the TVPRA to allow for the swift repatriation of all unaccompanied children who don’t have asylum claims and who haven’t been trafficked, as President Obama asked it to do in 2014.
Congress can roll back the Flores decisions as a bipartisan federal panel recommended in 2019, to make clear that the settlement agreement at issue in those cases applies only as it was traditionally interpreted — to the detention of unaccompanied children.
And the Biden administration can either detain all arriving aliens who claim a fear of return until their asylum claims can be adjudicated — as section 235(b) of the INA requires — or it can return those migrants back to Mexico to await their court dates, as the Trump administration did in MPP.
Only by taking these three steps will Congress and the administration be able to alleviate the suffering at the Southwest border — and the suffering that the American people don’t see on the trip to the United States.