A Caravan of Illegal Immigrants: A Test of U.S. Borders

United States House of Representatives, Committee on Oversight and Government Reform, Subcommittee on National Security

By Andrew R. Arthur on April 12, 2018

Testimony of Andrew R. Arthur

Resident Fellow in Law and Policy

Center for Immigration Studies

To the Subcommittee on National Security

United States House of Representatives

Committee on Oversight and Government Reform

For A Hearing Titled:

"A Caravan of Illegal Immigrants: A Test of U.S. Borders"

April 12, 2018

2:00 p.m.

Room 2154, Rayburn House Office Building

Washington, DC 20515



Summary

After months in which a smaller number of aliens than usual attempted illegal entry into the United States following the election and inauguration of President Trump, in March 2018, more than 37,000 aliens were apprehended after attempted illegal entry, and more than 50,000 were apprehended along the border or were deemed inadmissible of the ports of entry. This upward trend is illustrated by the 1,000 to 1,500 foreign nationals in the Pueblo Sin Fronteras caravan, some if not all of whom have the intention of making their way to the United States.

The Trump administration has taken steps to address the surge of aliens coming in recent weeks illegally across our Southwest border. Specifically, the president is phasing out "catch and release", National Guard troops will be mobilized to the border, and the attorney general has announced a "zero-tolerance" policy for illegal entry prosecutions. While each of these steps will serve to stem the tide of aliens entering the United States illegally, there are still shortcomings and flaws in U.S. immigration law that draw aliens, and in particular alien minors, to enter the United States illegally. These shortcomings and flaws still need to be addressed, which could require congressional action.


Chairman DeSantis, Ranking Member Lynch, and members of the subcommittee, I thank you for inviting me here today to discuss this issue, which is not only critical to our national security, but also to our system of justice.

Background on the Caravan

As my colleague, Kausha Luna, reported on March 30, 2018:

As part of Holy Week, over a thousand Central American illegal aliens set out to complete a "Stations of the Cross", traversing through Mexico, to reach the United States' southern border. Upon arrival, they hope to make asylum claims.

The caravan, marching under the slogan "Migrantes en la lucha" ("Migrants in the Fight"), was announced about a month ago by the group Pueblo Sin Fronteras. The organization asked for donations on its Facebook page and encouraged people to send them a message if they were interested in volunteering. The organization's mission statement reads as follows, ''Our mission is to provide shelter and safety to migrants and refugees in transit, accompany them in their journey, and together demand respect for our human rights."

As early as March 18, participants gathered in Tapachula, on Mexico's southern border (the point of departure). Organizers shared a video on their Facebook page which showed the migrants playing ice-breaker games. According to the post, the organization also conducted some introductory workshops.1

The next day, BuzzFeed News reported that there were more than 1,000 Central American migrants in that caravan, 80 percent of whom were Honduran nationals.2

Press reports on the original plans for that caravan differ. For example, Deutsche Welle reported on April 7, 2018: "The caravan of migrants from Central America [which reached 1,500] that prompted Trump's criticism and subsequent border troop deployment was never intended to reach the United States."3 That article states:

The migrants were said to be fleeing violence and poverty and would seek asylum, but they also sought to draw attention to the plight of immigrants. The Mexican government had allowed the caravan to pass through its territory by issuing humanitarian permits valid for 20 days.

The caravan began to break up in southern Mexico on April 5 and organizers said the remaining busloads of migrants ended the caravan in Mexico City's Basilica de Guadalupe late [April 6, 2018]. From there, the migrants will be on their own, though many plan to stay in Mexico, while others will try to seek asylum in the US or attempt to cross the border.4

The Wall Street Journal, on the other hand, indicated that the organizers of that march (which the paper states has been an annual ritual since 2010) were overwhelmed by the number of migrants who took part this year.5 It reports that the organizers "admit their original plan of making their way to the U.S. border has likely changed":

"We cannot arrive to the border with 1,000 people. The group is too large, we never had seen this amount of people before," said Irineo Mujica, one of the leaders of the caravan. He said previous caravans had about 300 people.6

The Mexican government stopped the caravan in the town of Matias Romero, in the state of Oaxaca, during the first week of April.7

The Journal reported:

Mexican immigration officials are now offering most of the caravan migrants either a 20-day transit visa through Mexico or a 30-day humanitarian visa for those who want to apply for asylum in Mexico.8

Those migrants who were given 20-day transit visas will likely make their way to the United States. For example, in article dated April 7, 2018, USA Today reported that while many of the migrants had decided to stay in Mexico, "some of the migrants are determined to continue on their journey all the way to the U.S. border to apply for asylum in this country."9 The paper stated:

By [April 6, 2018], roughly 630 migrants — about half are women and children — arrived via bus in Puebla, about a two-hour drive south of Mexico City. They are staying in four shelters.

This weekend, they will be meeting one on one with volunteer Mexican and U.S. lawyers. The lawyers will explain the asylum laws in each country to see if the migrants might qualify, according to Jordi Ruiz Cirera, a freelance photographer who said he has been traveling with the caravan.

On [April 9, 2018], the migrants plan to head for Mexico City, where the caravan will end after a series of demonstrations participants plan to hold at key sites to call attention to the plight of migrants fleeing Central America.10

March Increase in Border Crossings

The caravan is not the only recent development that calls the security of the border into question.

Throughout the 2016 presidential campaign, then-candidate Donald Trump made it clear that he intended to enforce the immigration laws if elected.11 Backing up this rhetoric as it pertained to those entering illegally, on January 25, 2017, President Trump issued Executive Order 13,767, captioned "Border Security and Immigration Enforcement Improvements".12 While each of the sections of that order enhances immigration enforcement, four in particular were targeted at reducing the number of aliens entering the United States illegally.

First, section 2 of that order makes it clear that it is the policy of the executive branch to:

(a) secure the southern border of the United States through the immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism;

(b) detain individuals apprehended on suspicion of violating Federal or State law, including Federal immigration law, pending further proceedings regarding those violations;

(c) expedite determinations of apprehended individuals' claims of eligibility to remain in the United States;

(d) remove promptly those individuals whose legal claims to remain in the United States have been lawfully rejected, after any appropriate civil or criminal sanctions have been imposed; [and]

(e) cooperate fully with States and local law enforcement in enacting Federal-State partnerships to enforce Federal immigration priorities, as well as State monitoring and detention programs that are consistent with Federal law and do not undermine Federal immigration priorities.13

Section 5 of that order, captioned "Detention Facilities", stated:

(a) The Secretary shall take all appropriate action and allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico.

(b) The Secretary shall take all appropriate action and allocate all legally available resources to immediately assign asylum officers to immigration detention facilities for the purpose of accepting asylum referrals and conducting credible fear determinations pursuant to section 235(b)(1) of the INA (8 U.S.C. 1225(b)(1)) and applicable regulations and reasonable fear determinations pursuant to applicable regulations.

(c) The Attorney General shall take all appropriate action and allocate all legally available resources to immediately assign immigration judges to immigration detention facilities operated or controlled by the Secretary, or operated or controlled pursuant to contract by the Secretary, for the purpose of conducting proceedings authorized under title 8, chapter 12, subchapter II, United States Code.14

Section 6 of that order, captioned "Detention for Illegal Entry", specified that the secretary of Homeland Security:

[S]hall immediately take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law. The Secretary shall issue new policy guidance to all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the INA, including the termination of the practice commonly known as "catch and release," whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law.15

Section 13 of that order, captioned "Priority Enforcement", provided:

The Attorney General shall take all appropriate steps to establish prosecution guidelines and allocate appropriate resources to ensure that Federal prosecutors accord a high priority to prosecutions of offenses having a nexus to the southern border.16

The theory behind these provisions appears to be that, if a foreign national considering illegal entry into the United States knows that he or she will be arrested and detained (and possibly prosecuted) pending a determination of removability and relief, that foreign national will be less likely to try to enter illegally. If this is true, the order ostensibly had its intended effect, at least for a while.

The number of aliens apprehended along the Southwest border dropped precipitously after the election and the issuance of this order, in the short term. Specifically, according to U.S. Customs and Border Protection (CBP), the number of apprehensions along the border and of inadmissible persons at ports of entry declined from 66,712 in October 2016 to 63,364 in November 2016, 58,426 in December 2016, 42,473 in January 2017, 23,563 in February 2017, 16,600 in March 2017, and to 15,780 in April 2017.17 They began to increase in May 2017 (19,940), reaching a post-inauguration high of 40,511 (in December 2017) before declining again in January 2018 (35,822), with a slight uptick in February 2018 (36,695).18

Unfortunately, after Congress began to discuss amnesty for DACA beneficiaries (and others),19 the number of apprehensions and inadmissible aliens skyrocketed, reaching 50,308 in March 2018.20

Of these numbers, CBP states Southwest border apprehensions in FY 2017 dropped 76 percent from a high of 47,211 aliens in November 2016 to 11,126 aliens in April 2017, before ticking up in May (to 14,535 aliens), before increasing to 22,537 in September 2017.21 Those apprehensions increased to 29,077 (in November 2017), before dropping slightly in December 2017 (28,978), January 2018 (25,978), and trended upward again in February 2018 (26,666), and as noted in March 2018 (37,393).22

Significantly, according to CBP, total apprehensions along the Southwest border declined by 25 percent between FY 2016 and FY 2017.23 The latest influx of aliens across the Southwest border threatens to reverse this trend.

Presidential Response

The president has responded to this March 2018 influx and to the caravan by taking a number of actions.

First, he ordered that National Guard troops be sent to the border.24 On Friday, April 6, 2018, U.S. Defense Secretary James Mattis ordered up to 4,000 National Guard troops be deployed to the Southwest border through September 30, 2018, "under the 'command and control of their respective governors.'"25

Second, on April 6, 2018, the president ordered an end to "catch and release" policies that restricted the number of aliens who could be detained.26 The Hill reports:

President Trump signed a memorandum on Friday ordering agencies to "expeditiously end" the practice known as "catch and release" that allows immigrants caught in the U.S. without proper documents to be released from detention while their cases play out in court.

The memo signed by Trump orders the Department of Homeland Security, in coordination with other agencies, to submit a report to the president within 45 days "detailing all measures that their respective departments have pursued or are pursuing to expeditiously end 'catch and release' practices."

The report instructs departments to share information on any contracts to construct or operate detention facilities along the border as well as steps taken to assign asylum officers at detention facilities, among other measures.

As part of the order, Trump is requesting "a detailed list of all existing facilities, including military facilities, that could be used, modified, or repurposed to detain aliens for violations of immigration law at or near the borders of the United States."

Trump has also directed Attorney General Jeff Sessions and Homeland Security Secretary Kirstjen Nielsen to identify any other resources or steps "that may be needed to expeditiously end 'catch and release' practices."27

Also on April 6, 2018, Attorney General Jeff Sessions also issued a memorandum28 directing:

[E]ach United States Attorney's Office along the Southwest border – to the extent practicable, and in consultation with [the Department of Homeland Security (DHS)] – to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a).

The referenced provision of the law renders an initial illegal entry into the United States a criminal misdemeanor subject to a sentence of up to six months (and a fine), and illegal reentry a felony that carries with it a fine and a sentence of up to two years.29

Shortcomings in U.S. Immigration Law

Each of these actions will have a deterrent effect on aliens who are considering entering the United States illegally. Unfortunately, until various loopholes and exceptions in our immigration laws are addressed, even these actions will not be sufficient to secure the border.

Prosecuting aliens under section 1325(a), particularly if those convicted receive significant sentences, will make it less likely that foreign nationals will attempt illegal entry into the United States. Logic dictates that the higher the penalty (including jail time) imposed for a criminal violation, the less likely that the criminal will attempt the offense. This is especially true in immigration, where convictions make it less likely that an alien will receive discretionary relief, and where the vast majority of aliens are coming to the United States to work. If they are detained and convicted (and subsequently deported), they will have spent money on smuggling fees that they will not be able to recoup.

Similarly, an increase in detention will make it less likely that aliens will enter the United States illegally, and make it more likely that aliens without meritorious claims for relief who entered illegally will take orders of removal or voluntary departure and go home. Again, logic and experience suggest that aliens enter the United States illegally to remain at large in the United States. The longer that the alien is able to remain at large and work, therefore, the better. If the alien is detained and cannot work, however, there is no longer an incentive to remain; instead, accepting an order of removal or a grant of the privilege of voluntary departure is more advantageous to the alien than continued detention.

Finally, the presence of National Guard troops in support roles will free up Border Patrol agents to make apprehensions of aliens who entered illegally.

This is not the first time that the National Guard has been deployed to the border. As PBS notes:

From 2006 to 2008, the Guard fixed vehicles, maintained roads, repaired fences and performed ground surveillance. Its second mission in 2010 and 2011 involved more aerial surveillance and intelligence work. People involved in both operations say the Guard was the Border Patrol's "eyes and ears."30

According to news reports, during this deployment, Air National Guard helicopters will likely provide surveillance and back up, and check areas where censors have been triggered "to determine the number of immigrants having crossed the line."31 In addition, "Guardsmen will also repair vehicles, monitoring and maintaining video surveillance to help provide real-time intel to border agents."32

Even these efforts will be frustrated, however, at least to some degree, by flaws and loopholes in current U.S. immigration law.

First, border security is undermined by our current "credible fear" system. When they arrive at the United States border without proper documents, aliens seeking entry take one, or both, of two separate actions: entering the United States illegally across the border, or presenting themselves at a port of entry.

If they present themselves at a port of entry without proper documents, they will be deemed inadmissible to the United States under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA).33 If they enter the United States illegally, and are apprehended by the Border Patrol, they will likely be detained and in charged with removability under section 212(a)(6)(A)(i) of the INA.34

Under section 235(b)(1)(A) of the INA,35 when apprehended shortly after entry at the border or a port of entry, each of these classes of aliens are subject to expedited removal. Specifically, that provision states that "the [immigration] officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution."36

It appears that the aliens in the caravan who reach the United States will be requesting asylum under the "credible fear" process. Attorney General Jeff Sessions explained that process in a speech he delivered on October 12, 2017, before the Executive Office for Immigration Review (EOIR):

The Department of Homeland Security is tasked in the first instance with evaluating whether an apprehended alien's claim of fear is credible. If DHS finds that it may be, the applicant is placed in removal proceedings and allowed to present an asylum claim to an immigration judge.

If, however, DHS finds that the alien does not have a credible fear, the alien can still get an immigration judge to review that determination. In effect, those who would otherwise be subject to expedited removal get two chances to establish that their fear is credible.37

Under section 235(b)(1)(B)(v) of the INA,38 "the term 'credible fear of persecution' means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208." "[S]ignificant possibility ... that the alien could establish eligibility for asylum" is lower than the standard required for asylum, which requires either "past persecution" or "well-founded fear of persecution."39

In the aforementioned October 2017 speech, Attorney General Sessions identified a number of key issues with the "credible fear" system:

[I]n 2009, the previous Administration began to allow most aliens who passed an initial credible fear review to be released from custody into the United States pending a full hearing. These changes — and case law that has expanded the concept of asylum well beyond Congressional intent—created even more incentives for illegal aliens to come here and claim a fear of return.

The consequences are just what you'd expect. Claims of fear to return have skyrocketed, and the percentage of claims that are genuinely meritorious are down.

The system is being abused to the detriment of the rule of law, sound public policy, public safety, and of just claims. This, of course, undermines the system and frustrates officers who work to make dangerous arrests in remote areas. Saying a few simple words is now transforming a straightforward arrest and immediate return into a probable release and a hearing — if the alien shows for the hearing.

Here are the shocking statistics: in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, that number had increased to 94,000. The number of these aliens placed in removal proceedings went from fewer than 4,000 in 2009 to more than 73,000 by 2016 — nearly a 19-fold increase — overwhelming the system and leaving those with just claims buried.

The increase has been especially pronounced and abused at the border. From 2009 to 2016, the credible fear claims at the border went from approximately 3,000 cases to more than 69,000.

All told the Executive Office for Immigration Review has over 600,000 cases pending — tripled from 2009.

And the adjudication process is broken as well. DHS found a credible fear in 88 percent of claims adjudicated. That means an alien entering the United States illegally has an 88 percent chance to avoid expedited removal simply by claiming a fear of return.

But even more telling, half of those that pass that screening — the very people who say they came here seeking asylum — never even file an asylum application once they are in the United States. This suggests they knew their asylum claims lacked merit and that their claim of fear was simply a ruse to enter the country illegally.40 [Emphasis added.]

In cases in which a credible fear determination was made in the first three months of FY 2018, credible fear was established in 90 percent of cases (October 2017 and November 2017), and 89 percent of cases (December 2017).41 This number does not include "closings", that is, cases in which a request for credible fear was withdrawn or some other action was taken on the case. Even when those numbers are added in, however, credible fear was found in more than 75 percent of cases (October 2017), 77 percent of cases (November 2017), and 78 percent of cases (December 2017).42

It is doubtful that DOJ will attempt to prosecute aliens who have entered illegally but who have been found to have a "credible fear" of persecution. Therefore, the attorney general's "zero-tolerance" policy will likely have no effect on the flow of such aliens to the United States illegally. Further, the deployment of National Guard troops to the border to supplement the efforts of the Border Patrol will likely have little effect on aliens claiming credible fear, as those aliens often will turn themselves in to the first Border Patrol agent they encounter.43

It should be noted that some credible fear claims are simply fraudulent, advanced by aliens in order to gain access to the United States. That said, many aliens claiming credible fear are in flight from areas where there are high levels of criminal danger, some of which may have affected those aliens themselves. The lack of clear guidance on adjudicating such claims has, unfortunately, swelled the numbers of aliens found to have credible fear.

In particular, many asylum claims in recent years from Central America have related to criminal violence, and in particular gang violence, in those countries, a fact magnified by the number of unaccompanied alien children (UACs) who have entered the United States in recent years.

In a September 5, 2014, report,44 the Congressional Research Service (CRS) found:

When considered by the BIA or appellate courts in light of how the INA's definition of refugee is construed, claims to asylum based on gang-related violence frequently (although not inevitably) fail. In some cases, this is because the harm experienced or feared by the alien is seen not as persecution, but as generalized lawlessness or criminal activity. In other cases, persecution has been found to be lacking because governmental ineffectiveness in controlling the gangs is distinguished from inability or unwillingness to control them. In yet other cases, any persecution that is found is seen as lacking the requisite connection to a protected ground, and instead arising from activities "typical" to gangs, such as extortion and recruitment of new members. The particular social group articulated by the alien (e.g., former gang members, recruits) may also be seen as lacking a "common, immutable characteristic," social visibility (now, social distinction), or particularity.

Four of the five factors for asylum relief are fairly straightforward: race, religion, nationality, and political opinion.45 The BIA and the courts, however, have struggled with the parameters of "membership in a particular social group." In Matter of the M-E-V-G-,46 for example, the BIA held: "The phrase 'membership in a particular social group,' which is not defined in the Act, the [United Nations Convention Relating to the Status of Refugees], or the [United Nations Protocol Relating to the Status of Refugees], is ambiguous and difficult to define." In Fatin v. INS,47 then-Judge (now Justice) Alito, writing for the Court of Appeals for the Third Circuit, noted: "Read in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a 'particular social group.'"

In the gang violence context, this is complicated by the fact that generally, as the BIA recognized in Matter of Sanchez and Escobar,48 "the tragic and widespread savage violence [in a general population] as the result of civil strife and anarchy is not persecution," and that, as the BIA recognized in Matter of T-M-B-,49 victims of crime (in that case, extortion) not related to one of the five factors for asylum relief have not been subject to "persecution" for purposes of that relief.

The BIA summarized these issues as they relate to gang violence in Matter of M-E-V-G-:50

The prevalence of gang violence in many countries is a large societal problem. The gangs may target one segment of the population for recruitment, another for extortion, and yet others for kidnapping, trafficking in drugs and people, and other crimes. Although certain segments of a population may be more susceptible to one type of criminal activity than another, the residents all generally suffer from the gang's criminal efforts to sustain its enterprise in the area. A national community may struggle with significant societal problems resulting from gangs, but not all societal problems are bases for asylum.

Notwithstanding this, certain courts have held that aliens have been able to establish eligibility for asylum based on gang violence. For example, in Hernandez-Avalos v. Lynch,51 the Court of Appeals for the Fourth Circuit found that a Salvadoran national who had received death threats from Mara 18 members unless she allowed her son to join the gang had established eligibility for asylum. It held: "Mara 18 threatened Hernandez in order to recruit her son into their ranks, but they also threatened Hernandez, rather than another person, because of her family connection to her son," concluding that those "threats were ... made 'on account of' her membership in her nuclear family," a particular social group.

Fortunately, it appears that the attorney general is poised to address these issues, and provide clarity to the immigration courts, the Board of Immigration Appeals (BIA), and asylum officers. On March 7, 2018, he directed the BIA to refer Matter of A-B-52 to him for his review, in accordance with 8 C.F.R. § 1003.1(h)(1)(i).53 In that case, the attorney general is inviting briefing on: "Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable 'particular social group' for purposes of an application for asylum or withholding of removal."54

By providing immigration judges, the BIA, and asylum officers with better guidance on these issues, the attorney general will be able to limit the number of claims (and in particular "credible fear" claims) that are considered in the immigration courts, and enable immigration judges and asylum officers to decide those cases more quickly.

There is also pending legislation to address other flaws in the "credible fear" process. Specifically, the Securing America's Future Act of 2018 (SAFA)55 contains two provisions that would amend section 235 of the INA to put asylum officers in a better position to make credible fear determinations.

Section 4402 of division B, title IV of that bill56 would amend the definition of "credible fear of persecution" in section 235(b)(1)(B)(v) of the INA to apply the same credibility standards that are used in asylum adjudications, and make it clear that credible fear should only be found where "it is more probable than not that the statements made by, and on behalf of, the alien in support of the alien's claim are true." All too often, it appears that asylum officers believe they are required to accept the credible fear applicants' statements at face value absent significant inconsistencies. This provision would address that issue.

Second, section 4403 of division B, title IV57 of that bill would direct uniformity in questioning by asylum officers in credible fear cases, and require recording of credible fear interviews, which would be made available to the immigration court considering the alien's asylum claim. The second provision is particularly important, as aliens who have passed credible fear and are applying for asylum will often claim that they were misquoted during their credible fear interviews when confronted with inconsistencies between the record of those interviews and their testimony in court.

Another factor that will frustrate the president's border-enforcement efforts is the current iteration of The William Wilberforce Trafficking Victims Reauthorization Protection Act of 2008 (TVPRA).58

By way of background, section 462 of the Homeland Security Act of 200259 vested jurisdiction over the care and placement of UACs in removal proceedings with the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS).

Section 235 of the TVPRA distinguishes between UACs from "contiguous" countries (Canada and Mexico) and aliens from "non-contiguous" countries. Under such section 235(a)(2) of that act, a UAC from a contiguous country can be returned if that UAC has not been and will not be a "victim of a severe form of trafficking in persons", does not have a credible fear, and "is able to make an independent decision to withdraw" his or her application for admission.

As CRS has found, however:

The TVPRA mandated that unaccompanied alien children from countries other than Mexico or Canada — along with UAC from those countries who are apprehended away from the border — are to be transferred to the care and custody of HHS and placed in formal removal proceedings.60

Specifically, section 235(b)(3) of the TVPRA directs "any department or agency of the Federal Government that has an unaccompanied alien child in custody" to "transfer the custody of such child to [HHS] not later than 72 hours after determining that such child is an unaccompanied alien child."61

As my colleague Joseph J. Kolb described the TVPRA in a November 3, 2016, Backgrounder from the Center for Immigration Studies:

The William Wilberforce Trafficking Victims Reauthorization Protection Act of 2008 was a well-intentioned attempt to protect immigrant children from exploitation, but it actually applies to very few of the more than 200,000 unaccompanied minors that have crossed the southwest border from the Northern Triangle countries of Central America since 2013. Most of these kids are not victims of trafficking, but came to the United States voluntarily with the assistance of a human smuggler, and with the intent of being reunited with a parent or family member.

According to the Associated Press, with information obtained through a Freedom of Information Act request from the U.S. Department of Health and Human Services, between February 2014 and September 2015, 56,000 (80 percent) of the children were placed with sponsors illegally in the United States and an additional 700 were placed with sponsors in deportation proceedings. Only 4,900 were placed with sponsors legally in the country.

The TVPRA calls for the HHS secretary to have the children promptly placed in the least restrictive setting that is in their best physical and emotional interest. This is the loophole HHS uses to place children with designated sponsors illegally in the United States. The law only refers to checking the sponsors' immigration status, not acting upon it. The perception by ORR is that regardless of immigration status, placing the children with a parent is the preferred solution. The AP report found that more than 50 percent of the children were placed with parents.

...

One congressional staffer, who declined to be identified, told the author that the current policy exploits a humanitarian law to manufacture additional reasons for illegal immigrants to remain in the country instead of being returned home. And it creates a huge demand for more minors to flood across the U.S. border to take advantage of it. In some cases, these unaccompanied minors should not qualify for the protections of this law because not only were they not trafficked, they were placed with their parents or legal guardians, which by definition means they are no longer unaccompanied.

The Obama administration and welfare advocates have professed that UACs are attempting to escape gang violence in Central America, and many have been. But there is also an awareness of the current policies that will enable them to stay for an indefinite period. The author's understanding, after seeing Border Patrol intel reports, news media accounts, and results of interviews by some of my colleagues, is that there was not so much awareness of DACA as just the fact that they would be released with a court date far in the future. According to one intel report, something like 90 percent of the UACs and family arrivals interviewed said they were coming because they heard they would be released with a "permiso" which is the slang for Notice to Appear in immigration court, which is de facto permission to stay pending the conclusion of deportation proceedings. This has resulted in a massive advertising campaign throughout Central America attempting to stem the migration north by saying that their hopes for admission to the United States based on this interpretation of the law are risky.

Pedro Sanchez, Consul at the El Salvadoran Consulate in New York City, acknowledges that many children from his country hedge their bets on this interpretation.

"People continue to send their children with this misunderstanding," Sanchez told the author.62

It is doubtful that UACs would be prosecuted for illegal entry (or even illegal reentry), regardless of the attorney general's policies. Moreover, it would appear that "catch and release" will continue to apply to this population of aliens, regardless of the president's pronouncements. Again, this law provides an incentive for older UACs to attempt to enter the United States illegally, and for the parents of younger UACs to have their children smuggled illegally to the United States.

This is particularly problematic because of the nature of smuggling, and in particular the debased nature of smugglers. ICE put it best when they stated:

While smugglers most often transport adult males, the number of women, children and family units seeking transport has increased dramatically in recent years. They often find themselves at risk for assault and abuse such as rape, beatings, kidnapping and robbery. Smugglers regularly overcrowd living and sleeping accommodations, and withhold food and water. In addition, individuals who are smuggled may be forced into human trafficking situations upon their arrival in the U.S. or their families may be extorted. Even knowing these dangers, the majority of people who travel with a smuggling organization do so voluntarily.63

Again, SAFA attempts to plug the loopholes in section 235 of the TVPRA. Division B, title V, section 550164 of that bill eliminates the conflicting rules between nationals from contiguous and non-contiguous countries, and subjects all minors to expeditious return if they have not been trafficked and do not have a credible fear of persecution. In addition, it ensures that minors who are victims of severe forms of trafficking are afforded a hearing before an immigration judge within 14 days, while extending the ability of DHS to hold an UAC for up to 30 days to ensure a speedy judicial process.

Moreover, that section of SAFA requires HHS to provide DHS with biographical information for the sponsors or family members to whom the UACs are released, a requirement that does not exist in current law. In the absence of such information, there is a distinct possibility that UACs could become lost in the removal system, or worse, possibly be handed over to abusers and other criminals.

Finally, section 5501 provides authority for the Secretary of State to negotiate agreements with foreign countries regarding UACs, including protections for minors who are returned to their country of nationality.

In addition, section 5503 of division B, title V of SAFA65 would eliminate section 208(b)(3)(C) of the INA,66 which gives UACs the opportunity to have their asylum applications heard by both asylum officers at U.S. Citizenship and Immigration Services (USCIS) and immigration judges, even if they would are subject to expedited removal under section 235(b) of the INA. Again, this provision of current law provides UACs greater incentives to enter the United States illegally and make an asylum claim, regardless of its validity.

Yet another factor complicating the president's border agenda is the so-called Flores67 settlement, which regulates the treatment and conditions of detention of UACs in immigration custody. As CRS has described that agreement:

During the 1980s, allegations of UAC mistreatment by the former Immigration and Naturalization Service (INS) caused a series of lawsuits against the government that eventually resulted in the Flores Settlement Agreement (Flores Agreement) in 1997. The Flores Agreement established a nationwide policy for the detention, treatment, and release of UAC and recognized the particular vulnerability of UACs as minors while detained without a parent or legal guardian present.68

Human Rights First has explained:

The Flores Settlement Agreement (Flores) imposed several obligations on the immigration authorities, which fall into three broad categories:

The government is required to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.

If a suitable placement is not immediately available, the government is obligated to place children in the "least restrictive" setting appropriate to their age and any special needs.

The government must implement standards relating to the care and treatment of children in immigration detention.69

The Ninth Circuit has made clear that the Flores settlement agreement creates a presumption in favor of the release of alien minors.70

It should be noted that the Flores agreement does not only apply to UACs; rather, a July 2016 circuit court opinion71 held that the 1997 Flores settlement applies to both accompanied and unaccompanied alien children.

The Flores settlement agreement is problematic in many ways. It encourages UACs to enter the United States illegally, and encourages the parents of UACs to hire smugglers to bring them to the United States. Further, it encourages people to bring their own children (or children whom they claim to be their own) when they make the perilous journey to the United States, thinking that it will make it more likely that they (the parents or purported parents) are more likely to be released if they travel with children.

Ironically, in cases where the parents are detained, and the child is released, then the child would, in fact be, a UAC; it is questionable that this is a result that Congress or the courts intended.

Again, it is doubtful that the president's efforts to end "catch and release" or the attorney general's "zero-tolerance" policy will be directed toward these UACs, and therefore will have little or no effect on the illegal entry of such aliens to the United States. Moreover, it is doubtful that the presence of National Guard troops supporting Border Patrol activities will stem the flow of these UACs; with the prospect of release into the United States, they would have no reason not to turn themselves in to the Border Patrol, or at least not be inhibited by additional Border Patrol agents enforcing the laws along the border.

Moreover, and as a significant practical matter, almost every UAC in the caravan (other than a Mexican or Canadian national) would be able to use the TVPRA and the Flores settlement agreement to come to the United States with the expectation of being released into the interior of this country, to await a hearing that might be years in the future.

Again, SAFA provides for a fix to Flores as it pertains to accompanied children. Specifically, division B, title V, section 5506 of that bill72 clarifies that there is no presumption that an accompanied child should not be detained, and vests jurisdiction over detention determinations for accompanied children with the secretary of Homeland Security. It also mandates that accompanied children be released only to the alien's parent or legal guardian.

One final provision that undermines the president's border agenda relates to so-called special immigrant juveniles (SIJs), for whom a visa is provided in section 101(a)(27)(J) of the INA.73 USCIS's website explains:

If you are in the United States and need the protection of a juvenile court because you have been abused, abandoned, or neglected by a parent, you may be eligible for [SIJ] classification. If SIJ classification is granted, you may qualify for lawful permanent residency (also known as getting a Green Card).74

Again, SIJ classification (which an appropriate instances can be a necessary form of protection) provides an incentive for children and young adults to enter the United States illegally. As CRS reported in August 2014:

There has been a tenfold increase in the number of children requesting SIJ status between FY2005 and FY2013. In terms of approvals, the numbers have gone from 73 in FY2005 to 3,432 in FY2013. While the data do not differentiate among those unauthorized children who arrived unaccompanied by their parents and those who were removed from their parents because of abuse, abandonment, or neglect, many observers point to the similarity in the spiking trends of both categories.75

Why the increase? It is possible that amendments in the TVPRA are to blame. According to CRS:

In 2008, Congress amended the SIJ provisions in the INA to broaden their applicability. The [TVPRA], among other things, amended the SIJ eligibility provisions to (1) remove the requirement that a juvenile court deem a juvenile eligible for long-term foster care and (2) replace it with a requirement that the juvenile court find reunification with one or both parents not viable.76 [Emphasis added.]

This means that an alien can nonetheless still be granted SIJ classification, even though another parent is present in the United States and able and willing to care for them.

SAFA provides a fix to this loophole as well. Section 5502 of division B, title V of SAFA77 would make it clear that an alien is only eligible for SIJ classification if the alien is unable to reunite with either of his parents "due to abuse, neglect, abandonment, or a similar basis found under State law."78

Summary

After months in which a smaller number of aliens than usual attempted illegal entry into the United States following the election and inauguration of President Trump, in March 2018, more than 37,000 aliens were apprehended after attempted illegal entry, and more than 50,000 were apprehended along the border or were deemed inadmissible of the ports of entry. This upward trend is illustrated by the 1,000 to 1,500 foreign nationals in the Pueblo Sin Fronteras caravan, some if not all of whom have the intention of making their way to the United States.

The Trump administration has taken steps to address the surge of aliens coming in recent weeks illegally across our Southwest border. Specifically, the president is phasing out "catch and release", National Guard troops will be mobilized to the border, and the attorney general has announced a "zero-tolerance" policy for illegal entry prosecutions. While each of these steps will serve to stem the tide of aliens entering the United States illegally, there are still shortcomings and flaws in U.S. immigration law that draw aliens, and in particular alien minors, to enter the United States illegally. These shortcomings and flaws still need to be addressed, which could require congressional action.

I thank you again for your invitation to attend today's hearing, and I look forward to your questions.


End Notes

1 Kausha Luna, "Caravan of Central American Illegal Aliens Heads to the U.S.", Center for Immigration Studies, March 30, 2018.

2 Adolfo Flores, "A Huge Caravan Of Central Americans Is Headed For The US, And No One In Mexico Dares To Stop Them", BuzzFeed News, March 31, 2018.

3 "US deploys troops to Mexico border, as migrant caravan ends", Deutsche Welle, April 7, 2018.

4 Id.

5 Juan Montes, "Caravan in Trump's Crosshairs Stalls Far From Border", Wall Street Journal, April 4, 2018.

6 Id.

7 Id.

8 Id.

9 Daniel González, "Migrant caravan in Mexico smaller, but not disbanded, as travelers meet with lawyers", USA Today, April 7, 2018.

10 Id.

11 See Miriam Valverde, "Compare the candidates: Clinton vs. Trump on immigration", Politifact, July 15, 016 ("Presidential candidates Donald Trump and Hillary Clinton have taken opposite roads on their quest for immigration reform. Trump calls for mass deportations, migrant bans and a wall to keep away people from coming into the country, while Clinton wants a pathway to citizenship, immigrant integration and protection from deportation.")

12 E.O. 13,767, "Border Security and Immigration Enforcement Improvements", the White House, January 25, 2017.

13 Id. at section 2.

14 Id. at section 5.

15 Id. at section 6.

16 Id. at section 13.

17 "Southwest Border Migration FY2017", U.S. Customs and Border Protection, December 15, 2017.

18 "Southwest Border Migration FY2018", U.S. Customs and Border Protection, April 4, 2018.

19 See Dylan Scott and Tara Golshan, "The Senate's failed votes on DACA and immigration: what we know", Vox, February 18, 2018.

20 "Southwest Border Migration FY2018", U.S. Customs and Border Protection, April 4, 2018.

21 "Southwest Border Migration FY2017", U.S. Customs and Border Protection, December 15, 2017.

22 "Southwest Border Migration FY2018", U.S. Customs and Border Protection, April 4, 2018.

23 See Id.

24 Dave Montgomery and Manny Fernandez, "Texas Begins Sending National Guard Troops to Mexican Border?", The New York Times, April 6, 2018.

25 Id.

26 Jesse Byrnes, "Trump signs memo ordering end to 'catch and release' practices", The Hill, April 6, 2018.

27 Id.

28 The Attorney General, "Memorandum: Zero Tolerance for Offenses under 8 U.S.C. § 1325(a)", U.S. Department of Justice, April 6, 2018. available at:

29 8 U.S.C. § 1325(a).

30 Elliot Spagat, "National Guard's last border deployments offer clues to the future", PBS News Hour, April 6, 2018.

31 William Lajeunesse, "National Guard will only play supporting role to agents at the border", Fox News, April 6, 2018.

32 Id.

33 Section 212(a)(7)(A)(i)(I) of the INA. ("In general.-Except as otherwise specifically provided in this Act, any immigrant at the time of application for admission- (I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 211(a) ... is inadmissible.").

34 Section 212(a)(6)(A)(i) of the INA. ("In general.-An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.").

35 Sections 235(b)(1)(A) and (iii)(II) of the INA.

36 Id.

37 "Attorney General Jeff Sessions Delivers Remarks to the Executive Office for Immigration Review", U.S. Dep't of Justice, Office of Public Affairs, October 12. 2017.

38 Section 235(b)(1)(B)(v) of the INA.

39 See Section 208(b)(1) of the INA ("The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A)."); Section 101(a)(42)(A) of the INA ("The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.").

40 "Attorney General Jeff Sessions Delivers Remarks to the Executive Office for Immigration Review", U.S. Department of Justice, Office of Public Affairs, October 12. 2017.

41 See "Credible Fear Workload Report Summary, FY 2018 Total Caseload", U.S. Citizenship and Immigration Services, undated.

42 Id.

43 See Amanda Sakuma, "Illegal Immigration Is Changing. Border Security Is Still Catching Up", NBC News, October 17, 2016. ("U.S. officials have known for years that a significant number of Central American migrants are actually turning themselves in at Border Patrol stations and begging for protection. And because they're asylum-seekers, agents can't simply turn them away or immediately deport them. The United States has a legal obligation to accept the thousands of migrants until their asylum claims are processed.").

44 Kate M. Manuel, "Asylum and Gang Violence: Legal Overview", Congressional Research Service, September 5, 2014.

45 See Section 101(a)(42)(A) of the INA ("The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.").

46 Matter of M-E-V-G-, 26 I&N December 227 (BIA 2014).

47 Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993).

48 Matter of Sanchez and Escobar, 19 I&N Dec. 276 (BIA 1985), aff'd, Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986).

49 Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997).

50 Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).

51 Hernandez-Avalos v. Lynch, 784 F. 3d 944 (4th Cir. 2015).

52 Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018).

53 8 C.F.R. § 1003.1(h)(1)(i).

54 Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018).

55 Securing America's Future Act of 2018, H.R.4760, 115th Congress (2018).

56 Id. at div. B, tit. IV, § 4402.

57 Id. at div. B, tit. IV, § 4403.

58 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110-457 (2008).

59 Homeland Security Act of 2002, Pub. L. 107-296 (2002), § 462.

60 William A. Kandel, "Unaccompanied Alien Children: An Overview", Congressional Research Service, at 4, January 18, 2017.

61 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, § 235(b)(3), Pub. L. 110-457 (2008).

62 Joseph J. Kolb, "Implementation of a Law to Protect Trafficking Victims Has Become a Public Safety Issue", Center for Immigration Studies, November 3, 2016.

63 "Human smuggling equals grave danger, big money", U.S. Immigration and Customs Enforcement, updated January 16, 2018.

64 Securing America's Future Act of 2018, H.R.4760, 115th Congress, div. B, tit. V, § 5501 (2018).

65 Id. at § 5503.

66 Section 208(b)(3)(C) of the INA.

67 Flores v. Reno, Stipulated Settlement Agreement.

68 William A. Kandel, "Unaccompanied Alien Children: An Overview", Congressional Research Service, at 3, January 18, 2017.

69 "The Flores Settlement: A Brief History and Next Steps", Human Rights First, February 19, 2016.

70 Flores v. Lynch, 828 F. 3d 898 (9th Cir. 2016).

71 Id.

72 Securing America's Future Act of 2018, H.R.4760, 115th Congress, div. B, tit. V, § 5506 (2018).

73 Section 101(a)(27)(J) of the INA.

74 "Special Immigrant Juveniles", U.S. Citizenship and Immigration Services, updated April 4, 2018.

75 Ruth Ellen Wasem, "Special Immigrant Juveniles: In Brief", Congressional Research Service, Summary, August 29, 2014.

76 Id. at 3.

77 Id. at § 5502.

78 Section 101(a)(27)(J) of the INA.