In my last post, I offered bookends for the Trump administration’s border efforts — both the issues that he inherited when he took office (and promises he made as a candidate), and the security he had achieved when he left. Unfortunately, not only didn’t that security last, but the United States is now dealing with record levels of illegal immigration and drug smuggling at the Southwest border. To explain why, I’ll next describe the unique political challenges the 45th president faced in dealing with the border.
A Brief Recap. Donald Trump took the oath of office in a year (FY 2017) in which Border Patrol apprehensions (fewer than 304,000 illegal migrants) were at 45-year lows. You had to go back to the Nixon administration in 1971 (when there were just short of 264,000 apprehensions) to find a lower level of illegal immigration at the U.S.-Mexico line.
Those numbers were deceiving, however, because that population of illegal entrants was very different from what agents faced under Nixon, due to factors largely outside of Trump’s control.
A December 2009 Obama-era policy directive ordering ICE officers to release on parole illegal entrants who had received “positive credible fear determinations” encouraged greater numbers of “other than Mexican” (OTM) migrants to enter illegally.
Mexican nationals can be retuned at any border port of entry, but OTMs must be repatriated, and the OTM influx made it much more difficult for agents to expel the aliens it had apprehended.
Just 42 percent of the illegal entrants apprehended at the Southwest border in FY 2017 were Mexican nationals. The rest were OTMs, the vast majority (54 percent of the total) from the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras.
And a 2015 district court decision, which directed the release within 20 days of encounter of alien children (and usually their parents) who had entered illegally in “family units”, provided opportunities for smugglers who now could advertise that if would-be migrants came with a kid, they were almost certain to be released into the U.S.
Not surprisingly, therefore, 25 percent of all migrants apprehended at the Southwest border in FY 2017 were in family units, as were 26.4 percent of aliens deemed inadmissible that year at the Southwest border ports of entry.
The Short-Lived “Trump Effect”. That said, there was a clear “Trump effect”, that is, a reaction to a winning candidate who asserted on the campaign trail that he was “extremely, extremely tough on illegal immigration” in an October 2015 interview in which he explained how he would have foiled the September 11th attacks.
Fewer than 12,200 migrants were apprehended entering the United States illegally at the Southwest border in March 2017, by far the lowest number of apprehensions for the month since 2000 (when CBP started keeping monthly records), and a 73 percent decline compared to March 2016 (33,316).
That trend continued throughout the spring and summer of 2017, and it wasn’t until November of that year that monthly apprehensions even approached 30,000 (29,085). Still, yearly apprehension totals for FY 2018 neared 400,000 (396,759), exceeding the yearly total for FY 2015 (331,333).
“Family Separation” and “Zero Tolerance”. More than 27 percent of those illegal entrants apprehended at the Southwest border in FY 2018 (107,212) were in family units, a 42 percent increase over FY 2017 (75,622) and a 38 percent jump compared to FY 2016 (77,674).
Although smugglers are vicious, rapacious, and cold-blooded criminals, they’re savvy businessmen. They concluded that even the president couldn’t ignore court orders, and that Trump’s DHS would have to continue to release adults who entered illegally with children.
Which was true for a while. In response to this burgeoning population of FMU migrants, Attorney General Jeff Sessions in April 2018 demanded “zero tolerance” in prosecutions of illegal migrants — “improper entry” being both a civil offense rendering the offender removable and also a federal crime, punishable as a misdemeanor for a first offense and a felony for repeated offenses.
That policy applied to all adults, including adults in FMUs, and in practice it meant those adults had to be sent for at least a brief period to U.S. Marshals Service custody, leaving some of their children — under DHS’s interpretation — “unaccompanied”.
A problematic 2008 law (that I’ll discuss below), however, required that those alien children who were deemed unaccompanied be sent to shelters run by the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS) for placement with “sponsors” in the United States.
The media pounced, charging Trump with deliberately “separating families”. In the face of public backlash, Trump ended zero tolerance after about six weeks in late June 2018, but that did not keep either the media or Joe Biden from flaying the administration over the issue all the way to the 2020 elections.
Smugglers, in turn, feasted on Trump’s back-peddling on family migrants: In FY 2019, more than 473,000 of the just over 851,500 migrants apprehended at the Southwest border were in FMUs — 55.6 percent of the total.
Taking a step back, however, family migration is not a black-and-white issue, even though it was easily demagogued by Trump’s opponents in the press and on Capitol Hill (both legion, especially at the time).
As a bipartisan federal panel tasked with addressing the FY 2019 FMU surge concluded in a report issued on an emergency basis (due to panelists’ belief that decisionmakers needed to know what was going on and respond as quickly as possible) in April of that year:
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.
That panel explained: “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”.
The panelists needn’t have bothered, because that report was roundly ignored — likely because anything that supported Trump’s efforts to dissuade adults from bringing kids with them on the deadly trek to the United States was likely to end up in the memory hole.
Sessions — gamely — attempted in real time to defend zero tolerance, however, explaining: “Smugglers and traffickers and those who lie or commit fraud will be prosecuted to the fullest extent of the law.” That’s hardly an extreme position, but his explanation of the limits of the policy was also disregarded.
Kids in Cages? Things really spun out of the administration’s control when zero tolerance became conflated with a trope called “kids in cages”, a similarly complicated subject that merits its own explanation.
Most Border Patrol facilities were built in the late 1990s and the early 2000s, when nearly all illegal migrants were single adults (mostly men from Mexico). Consequently, those facilities are spartan and open, providing no privacy and little ability for agents to separate one migrant from another.
In 2014, when the Obama administration experienced a major influx of unaccompanied minor migrants and adult female migrants with children, some solution was needed to separate apprehended migrants by age and sex, particularly at makeshift CBP “processing centers”.
That solution, as the Washington Post has explained, was to use chain-link fencing to create partitions, because: “The chain-link fencing was cheap, allowed for good ventilation and carried the benefit of allowing agents to supervise the entire facility, by affording them full visibility into the enclosures.”
Few saw images of those “cages” in 2014, likely because Barack Obama was viewed in most precincts as a “good guy” who wouldn’t do anything to harm migrants, especially children. Trump, on the other hand and as noted, cultivated a “tough on illegal immigration” image, which the press was more than happy to exploit with the lowest-hanging fruit of them all — kids, and the younger and more innocent, the better.
Want proof of this disparate treatment? Consider the following from the referenced Post article, which describes “an empty warehouse a few blocks from” the Border Patrol’s McAllen, Texas, station, converted into a CBP processing facility under Obama in July 2014 that remained in use under Trump:
The facility was controversial at the time, but it wasn’t until Trump’s zero-tolerance episode in spring 2018 that the facility came to symbolize the kind of administrative cruelty associated with the intentional separation of children from their parents by the government.
To be fair, that article in toto is an even-handed narrative describing family migrant detention written by one of the best (and most objective) immigration reporters in the nation. But even then, it veers into the tendentious.
Note also that Kirstjen Nielsen (who was DHS secretary during zero tolerance) denied in July 2020 that there was ever a “family separation” policy at all. Whatever was occurring, DHS was not prepared to handle it and struggled to keep track of the families, according to a September 2018 report from the department’s inspector general.
Regardless, the administration struggled to explain its policy to a hostile press (with its own agenda), and that colored Trump’s border efforts thereafter. In fact, the issue of immigration only came up once during the 2020 presidential debates, late in the last one held on October 23, in response to the following question from Kristen Welker of NBC News:
Mr. President, your administration separated children from their parents at the border, at least 4,000 kids, You've since reversed your zero tolerance policy, but the United States can't locate the parents of more than 500 children. So how will these families ever be reunited?
Trump did himself no favors in response, fumbling and asking Biden “who built the cages?”
Wall Funding and the Government Shutdown. Then-candidate Trump’s promise to “build a great wall along the southern border” was a cornerstone of his 2016 presidential campaign, and as president he embarked on a mission to erect or replace border fencing in high-traffic border areas.
Those efforts ran into a roadblock, however, in advance of the 2018 mid-term elections. In August 2018, Trump demanded $5 billion from Congress for “wall funding”, even though GOP leaders in the Senate (then controlling the chamber) had told the president that they could not overcome Democratic opposition to fund more than $1.6 billion in construction costs.
The issue was not resolved prior to the mid-terms (when Democrats seized control of the House), and Trump rejected a temporary funding bill in December that did not include the $5 billion for the wall, triggering a partial government shutdown on December 22.
That shutdown dragged on for more than a month, and on January 31, 2019, new House Speaker Nancy Pelosi (D-Calif.) stated that she opposed any wall construction funding (she had earlier derided “the wall” as “immoral, expensive, [and] unwise”), although Democrats on a congressional panel attempting to resolve the impasse declined to “rule out extra funding for some kind of added barrier at the border”.
In the end, on February 15, Trump agreed to $1.375 billion for border-barrier funding, and the longest government shutdown in U.S. history ended.
That day, however, the president issued a proclamation declaring a national emergency at the Southwest border and directing the Department of Defense to also use its funds to assist in securing that border. That further angered congressional Democrats, with Pelosi threatening, unsuccessfully, to derail the plan.
Unaccompanied Alien Children and the TVPRA. Against that backdrop, I turn to Trump’s FY 2019 “unaccompanied alien child” (UAC) crisis. That term 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.
UACs weren’t a major challenge for border enforcement until recent years, because historically, few children entered illegally, either with or without adults. Even then, however, immigrant advocates railed against the detention of children by the former Immigration and Naturalization Service (INS) — precursor to ICE and CBP in immigration enforcement in the interior and at the border (respectively).
When INS was abolished and DHS created in the Homeland Security Act of 2002, those advocates had the chance to act, and their House Democratic allies successfully offered an amendment to the act that transferred responsibility for the care and placement of UACs to ORR.
There was little debate when this amendment was approved, so it’s unclear why proponents believed ORR would do a better job detaining those kids than the former INS had, or as the future ICE — which was given authority to detain aliens generally — would.
In any event, the change wasn’t significant at first, because DHS didn’t encounter many UACs to transfer. According to the Congressional Research Service (CRS), the number of UACs DHS referred to ORR in the early 2000s “averaged 6,700 annually”.
That quickly changed in 2008, however, once congressional Democrats (who controlled both chambers of Congress at the time) pushed through the Trafficking Victims Protection Reauthorization Act (TVPRA).
Section 235 of the TVPRA divided UACs into two groups: (1) children from “contiguous” countries (Canada and Mexico); and (2) minor nationals of “non-contiguous” countries (everywhere else).
Under that provision, UACs from contiguous countries can be returned home if they have not been trafficked and don’t have a credible fear of return.
UACs from non-contiguous countries, however, must be transferred to ORR within 72 hours and placed into formal removal proceedings (UACs aren’t amenable to expedited removal), even if they have not been trafficked and have no fear of return. ORR is thereafter directed under TVPRA to place those children with “sponsors” in the United States.
That created an opening for parents, other family members, guardians, and traffickers in the United States interested in bringing children living in those “non-contiguous” countries to do so, prompted, again, largely by smugglers with their own agendas.
If you want proof about TVPRA’s deleterious effects on UAC entries, here are the statistics: CRS reports that in FY 2008, the fiscal year before TVPRA took effect, CBP encountered fewer than 10,000 UACs at the Southwest border.
By FY 2009, when that bill was signed, that figure rose to around 20,000 UACs, 82 percent of them Mexican nationals, and just 17 percent from the non-contiguous Northern Triangle countries.
The number of UACs entering illegally kept growing thereafter, with Border Patrol apprehending more than 68,500 of them in FY 2014. By that point, however, just 23 percent of UACs came from Mexico and 77 percent from the Northern Triangle.
Faced with a surge in “non-contiguous” UACs that year that he was struggling to handle, and political backlash from the left about the care of those kids, President Obama asked Congress 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 close the contiguous country loophole in section 235 of TVPRA.
Obama’s plaints were echoed in an August 2014 Washington Post editorial, which admitted: “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.”
Congress refused to act on Obama’s request, and still hasn’t. Consequently, increasing numbers of UACs — mostly OTMs — arrived at the Southwest border illegally during Trump’s term.
Likely in response to the aforementioned “Trump effect”, UAC apprehensions at the U.S.-Mexico line dipped to just fewer than 41,500 in FY 2017, but they rebounded to more than 50,000 (80 percent of them OTMs) by the next fiscal year.
The UAC situation at the Southwest border reached a breaking point in FY 2019, however, when more than 76,000 unaccompanied children were apprehended at the Southwest border, 86-percent plus from non-contiguous countries. Coupled with the surge in migrant families that year, CBP processing space for those kids quickly became extremely overcrowded, and ORR was full, as well.
To deal with that problem, on May 1, 2019, the White House asked Congress for $4.5 billion in emergency appropriations for DHS and HHS.
Congressional Democrats — who were not opposed to humanitarian funding in general — hoped to use the president’s travails to squeeze concessions out of the administration while opposing additional ICE detention.
The situation reached a breaking point in late May, as total monthly apprehensions approached 133,000, including more than 84,000 family unit migrants and almost 11,500 UACs.
On May 30, then-acting DHS Secretary Kevin McAleenan and White House Chief of Staff Mick Mulvaney held a feverish (and rare) night-time briefing call with the press to explain that DHS had “over 80,000 people in custody, a record level that is beyond sustainable capacity with current resources”.
That included “2,350 unaccompanied children — the highest level ever” who remained in DHS custody “waiting for days for placements in border stations that cannot provide appropriate conditions for them because” ORR was “out of bed space”.
Controlling House Democrats nonetheless blocked that funding well into June, while Trump’s critics — both political and in the media — used scenes of parents and children wallowing in adequate CBP housing as yet another cudgel against the president.
South Bend, Ind., Mayor Pete Buttigieg (a then-Democratic presidential candidate) told “Axios on HBO” on June 17 that he “wouldn't put it past” Trump to allow the border “to become worse in order to have it be a more divisive issue, so that he could benefit politically”, while the next day, Rep. Alexandria Ocasio-Cortez (D-N.Y.) tweeted:
This administration has established concentration camps on the southern border of the United States for immigrants, where they are being brutalized with dehumanizing conditions and dying.
This is not hyperbole. It is the conclusion of expert analysis ⬇️https://t.co/2dWHxb7UuL
— Alexandria Ocasio-Cortez (@AOC) June 18, 2019
It wasn’t until June 27 — nearly eight weeks after the administration warned of a humanitarian disaster involving families and (in particular) unaccompanied children at the Southwest border — that House Democrats acceded to a bipartisan Senate measure and released the money, in exchange for significant concessions.
For example, if you are curious why a 1987 FEMA program to provide assistance to homeless vets now pays nearly $800 million to feed, house, and transport millions of migrants President Biden has released at the Southwest border, it started in that bill.
But here’s how Pelosi put it, shortly after that vote: “At the end of the day, we have to make sure that the resources needed to protect the children are available. ... In order to get resources to the children fastest, we will reluctantly pass the Senate bill”. (Emphasis added.)
“Politics Ain’t Beanbag”. As Mr. Dooley once sagely explained, “Politics ain’t beanbag,” but few presidents have faced the political challenges that confronted President Trump in his efforts to deal with serial crises at the Southwest border. Some of those challenges were self-inflicted, while others were base (and at times sadistic) demagogy. In any event, Trump didn’t get much help from Congress, so as I’ll explain in my next piece, he had to rely almost solely on the powers his office provided to secure the border.