United States House of Representatives
Committee on Oversight and Government Reform
Subcommittee on Civil Rights and Civil Liberties
July 10, 2019, Rayburn House Office Building 2154, at 2:30 PM
I thank Ranking Member Roy for the opportunity to submit a statement for the record on the treatment of pregnant women and children at the border.
In the past eight years, the demographic makeup of the population of aliens who have been apprehended entering the United States illegally between the ports of entry, or who have been deemed inadmissible at the ports of entry, has changed significantly.
Specifically, as the Department of Homeland Security (DHS) noted in an April 4, 2018 press release1, prior to FY 2011, over 90 percent of arriving aliens were single adult males, and 90 percent were Mexican nationals. In May 2019, by comparison, 63.6 percent of aliens apprehended along the Southwest border were "family units," that is an adult or adults traveling with a child or children, usually purportedly their own.2 An additional 8.6 percent were unaccompanied alien children (UAC).3
Recent reports have detailed statements made by immigrants’ rights lawyers, who had interviewed UAC (including pregnant UAC), who in turn described deplorable conditions in U.S. Customs and Border Protection (CBP) custody.4 Those descriptions, however, appear to have been contradicted to a significant degree by observations made by journalists who had toured the CBP facility in Clint, Texas.5
I welcome investigation of the actual facts on the ground by the Office of the Inspector General at Homeland Security and the Department of Health and Human Services (HHS), and also by the Congress in exercising its oversight responsibility. Frontline agencies should be able to explain their best efforts to respond to the crisis.
I hope Members of Congress can also be focused on the big picture of how to fix the crisis at the border, and not only on the small picture of what frontline government agencies may be doing wrong under the pressures of the crisis. There is no doubt that the situation at the border is a law-enforcement and humanitarian crisis, as the capacity of the federal government to apprehend, detain, screen, and where appropriate, release aliens who have entered the United States illegally is being stretched to the breaking point.
For example, in May 2019, 144,278 aliens were apprehended either at the ports of entry or between the ports of entry along the Southwest border by CBP.6 By comparison, in April 2017, only 15,798 aliens were apprehended by CBP along that border.7 This means that the number of aliens apprehended along the Southwest border has increased more than 913 percent in just 25 months.
Determining the best ways to alleviate that crisis is critical to ensuring that there are sufficient resources to both secure the border from an illicit flow of migrants, as well as drugs and other contraband, and to humanely and effectively process those aliens who are apprehended.
Genesis of the Crisis
As a former law professor and Assistant Commissioner of the then-Immigration and Naturalization Service (INS), I believe that the current wave of migrants entering the United States illegally has its roots in the declaration by the administration of President Barack Obama of Deferred Action for Childhood Arrivals (DACA).
On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano announced that certain aliens who came to the United States under the age of 16 and who met specific guidelines could request consideration of DACA for a period of two years, subject to renewal.8 The press release9 accompanying that announcement set forth the parameters of that relief:
Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:
Came to the United States under the age of sixteen;
Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
Are not above the age of thirty.10
As of August 31, 2018, there were approximately 699,350 aliens present in the United States who were DACA beneficiaries, according to USCIS.11
The parameters of DACA as announced were specific, but I believe that DACA was widely, if not entirely accurately, interpreted as an amnesty for illegal immigrants who arrived before age 16, a belief that is supported by apprehension data.
As the Congressional Research Service (CRS) reported in January 201712:
Since FY2011, UAC apprehensions increased each year through FY2014: from 16,067 in FY2011 to 24,481 in FY2012 to 38,759 in FY2013 and 68,541 in FY2014. At the close of FY2014, the Border Patrol had apprehended more UAC than in any of the previous six years and close to four times as many UAC as in FY2011.
That 52 percent increase between FY 2011 and FY 2012, 58 percent increase between FY 2012 and FY 2013, and almost 79 percent increase between FY 2013 and FY 2014 in UAC apprehensions was, I conclude, a direct result of immigrant parents and guardians illegally present in the United States who had left their children in their home countries, paying smugglers to have those children brought illegally to the United States.
The Flores Settlement Agreement
DACA was not the only factor that influenced the flood of UAC to the Southwest border, however.
The Obama administration struggled with the crisis of UAC entering the United States illegally in its second term, especially starting in 2014. As CRS noted13:
To address the crisis at its peak in 2014, the Obama Administration developed a working group to coordinate the efforts of federal agencies involved. It also opened additional shelters and holding facilities to accommodate the large number of UAC apprehended at the border. In June 2014, the Administration announced plans to provide funding to the affected Central American countries for a variety of programs and security-related initiatives to mitigate the flow of unaccompanied migrant children.
By FY 2015, largely as result of these actions, the number of UAC who were apprehended entering the United States illegally had fallen to 39,970, a 42 percent decrease.14
On July 24, 2015, however, Judge Dolly Gee of the United States District Court for the Central District of California, who was overseeing the 1997 settlement agreement in Flores v. Reno15, granted a motion filed by the plaintiffs in that matter in response to ICE’s then-family detention policies.16
As CRS17 described the original settlement agreement:
The Flores Agreement established a nationwide policy for the detention, treatment, and release of UAC and recognized the particular vulnerability of UAC as minors while detained without a parent or legal guardian present. It required that immigration officials detaining minors provide (1) food and drinking water, (2) medical assistance in emergencies, (3) toilets and sinks, (4) adequate temperature control and ventilation, (5) adequate supervision to protect minors from others, and (6) separation from unrelated adults whenever possible.
That agreement18 also required the INS to release from its custody minors who did not pose a flight risk or a danger to him- or herself or others to the following individuals, in order of preference:
A. a parent;
B. a legal guardian;
C. an adult relative (brother, sister, aunt, uncle, or grandparent);
D. an adult individual or entity designated by the parent or legal guardian as capable and willing to care for the minor's well-being in (i) a declaration signed under penalty of perjury before an immigration or consular officer or (ii) such other document(s) that establish(es) to the satisfaction of the INS, in its discretion, the affiant's paternity or guardianship;
E. a licensed program willing to accept legal custody; or
F. an adult individual or entity seeking custody, in the discretion of the INS, when it appears that there is no other likely alternative to long term detention and family reunification does not appear to be a reasonable possibility.
Under the terms of Judge Gee’s order, a parent accompanying a minor was also required to be released “as long as doing so would not create a flight risk or a safety risk.”19 In a subsequent August 21, 2015 order in Flores v. Lynch, Judge Gee, in essence, ordered the release of minors (and parents) within 20 days.20 The government appealed those orders.
On July 6, 2016, a three-judge panel of the Court of Appeals for the Ninth Circuit held that the settlement agreement applied to minors who had arrived accompanied by their parents, but did not require the release of those parents.21 Significantly, the circuit court held: “The Settlement creates a presumption in favor of releasing minors and requires placement of those not released in licensed, non-secure facilities that meet certain standards.”22
The policies set forth in the Flores settlement agreement and the judicial decisions implementing it encourage UACs to enter the United States illegally, and encourage the parents of UACs to hire smugglers to bring their children to the United States.23 Not surprisingly in light of these most recent decisions, the number of UACs who were apprehended illegally entering the United States surged again in FY 2016, to 59,692, a 49 percent increase over the year before.24
The monthly number of apprehended UAC initially crested at 7,346 in November 2016, and declined precipitously following the election and the inauguration of Donald Trump as president of the United States, falling to 997 UAC apprehensions along the Southwest border in April 2017.25 That decrease likely resulted from Trump’s strong immigration rhetoric on the campaign trail and the actions26 that he attempted to take to enforce the immigration laws directly after assuming office.
The numbers of UAC apprehended at the border began to climb thereafter, however, almost definitely because smugglers and migrants realized that the president could not act unilaterally on his immigration plans and as Congress and the courts failed to act to plug the loopholes that drew migrants to the United States.27 Specifically, the number of UAC apprehended at the Southwest border increased from 41,435 in FY 201728 to 50,036 in FY 201829 (a 12 percent increase), to 56,278 in just the first eight months of FY 201930 alone.
Section 462 of the Homeland Security Act and the TVPRA VIII
This flood has overwhelmed the ability of the Department of Homeland Security (DHS) to process those UAC, and more importantly for the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR) to shelter and finds sponsors for those UAC.
ORR plays a major role in the sheltering and placement of UAC apprehended at the border as a result of two separate legislative provisions that were passed in the first decade of the new millennium.
The first is the Homeland Security Act of 2002.31 Section 462 of that act vested jurisdiction over the care and placement of UAC in removal proceedings with ORR.32 That provision is codified at 6 U.S.C. § 279.33 Prior to the passage of that bill, responsibility for the detention and release of UAC had rested with the former INS.34 In exercising that responsibility, since 1997, the INS had been operating under the restrictions set forth in the Flores settlement agreement, discussed above.35
The second is the William Wilberforce Trafficking Victims Reauthorization Protection Act of 2008 (TVPRA), which took effect on December 3, 2008.36 The TVPRA distinguishes between UACs from “contiguous” countries (Canada and Mexico) and aliens who are nationals of “non-contiguous” countries (every other one).37 A UAC from a contiguous country can be returned if the alien has not been trafficked and does not have a credible fear.38 Under the TVPRA, however, UAC who are nationals of non-contiguous countries must be transferred to the care and custody of HHS within 72 hours and placed in formal removal proceedings, even if they have not been “trafficked.”39
Significantly, section 235(c)(2) of the TVPRA requires that each UAC “be promptly placed in the least restrictive setting that is in the best interest of the child.”40 That section continues:
In making such placements, the Secretary [of HHS] may consider danger to self, danger to the community, and risk of flight. . . . A child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense. The placement of a child in a secure facility shall be reviewed, at a minimum, on a monthly basis, in accordance with procedures prescribed by the Secretary, to determine if such placement remains warranted.41
As CRS describes the placement process:
ORR arranges to house the child either in one of its shelters or in foster care; or the UAC program reunites the child with a family member. According to ORR, the majority of the youth are cared for initially through a network of state-licensed, ORR-funded care providers that offer classroom education, mental and medical health services, case management, and socialization and recreation. ORR oversees different types of shelters to accommodate unaccompanied children with different circumstances, including nonsecure shelter care, secure care, and transitional foster care facilities. A juvenile may be held in a secure facility only if he or she is charged with criminal or delinquent actions, threatens or commits violence, displays unacceptably disruptive conduct in a shelter, presents an escape risk, is in danger and is detained for his/her own safety, or is part of an emergency or influx of minors that results in insufficient bed space at nonsecure facilities.
The same care providers also facilitate the release of UAC to family members or other sponsors who are able to care for them.44
As of December 2018, ORR had “provided care for and found suitable sponsors for over” a quarter million 250,000 UACs.45 With respect to sponsors, the Administration for Children and Families (ACF), the HHS component with jurisdiction over ORR explains:
The overwhelming majority of UAC are released to suitable sponsors who are family members within the United States (U.S.) to await immigration hearings.
All potential sponsors for UAC are required to undergo background checks and complete a sponsor assessment process that identifies risk factors and other potential safety concerns. As a part of the release process, all potential sponsors must undergo a criminal public records check and a sex offender registry check. ORR also conducts background checks on adult household members and individuals identified in a potential sponsor’s care plan. In addition ORR policy requires that all proposed UAC sponsors be fingerprinted to enhance the safety checks on potential sponsors and UAC home. The fingerprints are cross-checked with the Federal Bureau of Investigation’s (FBI) national criminal history and state repository records and also includes a search of DHS arrest records. HHS will no longer require household members to submit to fingerprint background checks effective December 18, 2018. ORR will continue to do public records checks on all adult household members to ensure child safety.
In some instances ORR also requires a home study before releasing a child. Home studies are mandatory for certain cases identified in law, including for: a child who is a victim of trafficking; a child with a disability; where the child has been a victim of physical or sexual abuse under circumstances that indicate that the child’s health or welfare has been significantly harmed or threatened; and where the child’s sponsor clearly presents a risk of abuse, maltreatment, exploitation or trafficking, to the child based on all available objective evidence. Additionally, per ORR policy, a home study is required for any child to a non-relative sponsor who is seeking to sponsor multiple children, or has previously sponsored or sought to sponsor a child and is seeking to sponsor additional children. ORR requires a home study for children who are 12 years and under before releasing to a non-relative sponsor.46
In FY 2018, ORR conducted 3,641 home studies and provided post-release services to 14,088 UACs.47
In assessing the suitability of a potential sponsor, ORR also evaluates that sponsor’s ability to ensure that the UAC will appear at all future removal hearings.48 Most aliens who are apprehended entering the United States illegally, or who are deemed inadmissible at the ports of entry because of fraud or because they lack appropriate documents are subject to expedited removal under section 235(b) of the Immigration and Nationality Act (INA).49 This provision allows immigration officers — rather than immigration judges — to order the deportation of such arriving aliens, unless those aliens establish a credible fear of persecution or torture. If an alien otherwise amenable to expedited removal is found to have a credible fear, that alien will be placed in removal proceedings under section 240 of the INA, described further below.50
UAC, however, are not subject to the expedited removal provisions in section 235(b) of the INA.51 Rather, if a UAC is determined to be removable, that UAC will be placed directly into removal proceedings. Many, however, fail to appear for those proceedings.
Specifically, according to statistics from the Executive Office for Immigration Review, (EOIR), the Department of Justice (DOJ) component with jurisdiction over the immigration courts and the Board of Immigration Appeals, the number of UAC who were ordered removed in absentia, that is, after failing to appear for immigration court, has skyrocketed from 450 in FY 2010 to 6,662 in FY 201852, an almost 1,500 percent increase during a period of time when the number of UACs apprehended increased about 272 percent (from 18,411 in FY 201053 to 50,036 in FY 201854). In fact, in FY 2018, half of all case completions involving UAC were in absentia orders according to EOIR, compared to an overall in absentia average of 25 percent of all case completions.55
Further, most sponsors of UAC are in the United States illegally. The Senate Homeland Security and Governmental Affairs Committee (HSGAC) held a hearing in April 2019 captioned “Unprecedented Migration at the U.S. Southern Border: Perspectives from the Frontline.”56 At that hearing, Chairman Ron Johnson (R-WI) entered into the record statistics57 on the immigration status of sponsors to whom UAC were released between July 2018 and January 2019. Those statistics show that the vast majority of those sponsors (78.7 percent) lacked immigration status.
Again, those statistics suggest that most UAC are smuggled into the United States at the behest of parents and guardians illegally present in this country. The TVPRA and section 426 of the HSA facilitate that smuggling by all but assuring that UAC who reach the United States will be a reunited with their family members in this country.
Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas addressed this issue in 2013 in U.S. v. Nava-Martinez, in which the defendant was convicted of smuggling a Salvadoran minor to the United States.58 As he stated in his order in that matter:
This is the fourth case with the same factual situation this Court has had in as many weeks. In all the cases, human traffickers who smuggled minor children were apprehended short of delivering the children to their ultimate destination. In all cases, a parent, if not both parents, of the children was in this country illegally. That parent initiated the conspiracy to smuggle the minors into the country illegally. He or she also funded the conspiracy. In each case, the DHS completed the criminal conspiracy, instead of enforcing the laws of the United States, by delivering the minors into the custody of the parent living illegally in the United States. In response to this Court’s inquiry about this policy in the instant case, the Government responded with a copy of the 1997 Flores v. Reno . . . settlement agreement and a copy of a portion of the Homeland Security Act. No other explanation was offered –no doubt because there is no explanation. The DHS has simply chosen not to enforce the United States’ border security laws.
* * * *
There is nothing in that settlement that prohibits DHS from arresting [the adult who initiated the smuggling conspiracy and to whom the child was delivered] – or from at least initiating deportation proceedings. . . .[T]he is nothing in [section 462 of the Homeland Security Act] that directs and authorizes the DHS to turn a blind eye to criminal conduct, and certainly nothing that compels it to participate in and complete the mission of a criminal conspiracy or to encourage parents to put their minor children in perilous situations subject to the whims of evil individuals.59
As Judge Hanen made clear, nothing in the Flores settlement agreement or section 462 of the Homeland Security Act (or the TVPRA or the INA) prevents DHS from placing any sponsor of a UAC into removal proceedings. Section 224 of the Consolidated Appropriations Act, 201960, however, effectively bars DHS from using information obtained from HHS “to place in detention, remove, refer for a decision whether to initiate removal proceedings, or initiate removal proceedings against a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor of” a UAC, with limited exceptions. As Judge Hanen’s logic suggests, this simply encourages parents to have their children smuggled to the United States by criminals with impunity.
Expedited Removal and Credible Fear
Yet another loophole that encourages aliens to enter the United States illegally or without proper documents is our broken expedited removal and credible fear system.
Before 1996, unauthorized aliens arriving in the U.S. could delay their removal by making a claim for asylum, which because of backlogs in processing and a shortage of detention space often resulted in release on their own recognizance with an order to appear for a removal hearing before an immigration judge at a later date when their asylum claim would be considered. Most such arriving aliens failed to comply with their orders to appear for their scheduled hearing. In a famous report on the television program “60 Minutes” on CBS, Leslie Stahl showed that undocumented aliens were arriving at Kennedy International Airport every single day, and were routinely being released into the population the day of their arrival without any background check or assurance that they would appear for their scheduled hearing.
In 1996, Congress responded to that situation by enacting “expedited removal” for arriving aliens who either lacked proper documentation or engaged in misrepresentation in attempting to enter the United States, a reform which had long been requested by U.S. immigration enforcement authorities. The new provision nominally provided for the removal of such aliens without a formal removal hearing and without the order of an immigration judge.
In one of the classic bipartisan compromises for which it is alternately praised and condemned, however, Congress combined tough, mandatory removal with an enormous loophole. The statute enacted by Congress provided that, “If an immigration officer determines that an alien… who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) (misrepresentation) or 212(a)(7) (without documents), the 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… or a fear of persecution.”61 Clause (iii) of the new statute permitted the Attorney General to designate other, non-arriving aliens for expedited removal if they could not prove two years of physical presence in the United States.
Clause (iii) was invoked in 2002 to extend expedited removal to aliens who arrived by sea but do not have 2 years of physical presence.62 Expedited removal was expanded again in 2004 to aliens who entered without inspection, within 100 miles of a land border, and who cannot prove continuous presence for more than 14 days.63 That rule was further extended to within 100 miles of a maritime border in 2006.64
So expedited removal now clearly applies to recent alien arrivals near our land and maritime borders. The problem is the loophole for any alien who “indicates either an intention to apply for asylum… or a fear of persecution.”
The statute provides that aliens subject to expedited removal but who indicate an intention to apply for asylum or a fear of persecution shall be referred to an asylum officer for an interview. The asylum officer shall conduct interviews of referred aliens either at a port of entry “or at such place designated by the Attorney General.” If the asylum officer determines an alien has “a credible fear of persecution” then “the alien shall be detained for further consideration of the application for asylum.” If the asylum officer determines an alien does not have a credible fear of persecution, “the officer shall order the alien removed from the United States without further hearing or review.”65
That sounds tough until a second loophole kicks in which provides that even these aliens determined by an asylum officer to lack a credible fear of persecution, “upon the alien’s request” shall receive a “prompt review by an immigration judge” of the lack of credible fear determination by the asylum officer.66 So immigration judges are taken out of the expedited removal process at the beginning, only to be brought back in at the end before expedited removal can actually be executed.
The number of “credible fear” referrals has increased from 4,712 in FY 200567 to over 99,000 in FY 201868. The percentage of all referred cases where credible fear was found by asylum officers has fluctuated from year to year but the trend has been generally upwards from 64.15 percent in FY 2008 to 76.41 percent in FY201869. So credible fear has not been very effective at reducing the numbers of unauthorized aliens waiting in line for removal hearings before an immigration judge.
The concept of “credible fear” was instituted by the former INS as an informal device for screening the large number of Haitians interdicted on boats on the high seas headed for the United States after the Haitian coup of 1991. The idea was that people interdicted on boats who could not even articulate a credible fear that might qualify them for asylum would be repatriated to Haiti without further deliberation, and that Haitians who were able to articulate a credible fear of persecution would receive full asylum interviews either at the Guantanamo Naval Base in Cuba or elsewhere.
As it turned out, this informal screening out device had a short life, quickly superseded by events. Because the increasingly large number of Haitian migrants on boats became unmanageable, President Bush in 1992 issued an executive order that all migrants interdicted on the high seas should be repatriated directly without any refugee processing at all. The executive order was challenged in court as a violation of both U.S. and international refugee law. The district court upheld the executive order against the challenge. The U.S. Court of Appeals for the Second Circuit reversed the district court. And the U.S. Supreme Court by an eight to one majority vote reversed the Second Circuit and upheld the executive order, concluding that neither U.S. nor international refugee law limits the President’s power to repatriate undocumented aliens intercepted on the high seas.70
So when Congress enacted “expedited removal” in 1996, I was surprised to see that it had incorporated the concept of “credible fear” into the statute, possibly in the hope that it might again serve as a screening-out device to reduce the number of arriving and recently arrived undocumented aliens allowed to join the line waiting to make asylum claims in removal proceedings before immigration judges. Congress for the first time provided a statutory definition of “credible fear” as “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”.71
Congress also as part of the enactment of “expedited removal” for the first time included a definition of “asylum officer” in the statute as meaning “an immigration officer who—(i) has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of application under section 208 (asylum), and (ii) is supervised by an officer who meets the condition described in clause (i) and has had substantial experience adjudicating asylum applications.”72
Despite the large number of aliens who claimed credible fear in FY 2018 and preceding years, very few are actually granted asylum by the immigration courts. In a fact sheet73 released by EOIR using data generated in April 2019, that office revealed that out of every 100 aliens who claimed credible fear between FY 2008 and the second quarter of FY 2019, only 14 were granted asylum, despite 83 of them being referred to removal proceedings before the immigration courts.
Why such a low number of grants following a finding of credible fear? The credible fear standard is low, and asylum claims made because of poverty, unemployment, natural disaster, climate change, high crime, ineffective government, civil disorder, generalized conditions of violence, and even civil war, do not on their face meet the statutory and international threshold requirement for asylum. If enough such claims are made, however, the system can be overwhelmed, entry can be gained pending hearing many years in the future, if ever, and effective immigration in violation of the limits enacted by Congress can be effectively attained. As a bipartisan panel recently found, in fact, that is exactly what has been occurring recently along the Southwest border, as explained below.
Dangers Faced by Aliens Smuggled to the United States and Treatment in CBP Facilities
Two significant issues that have largely been ignored in the current discussion of the treatment of UAC and pregnant migrants after apprehension at the Southwest border are (1) the unconscionable levels of harm that are inflicted on those migrants on their journey (usually with the assistance of smugglers) to the border, and (2) the limited CBP, U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and HHS resources to deal with the unprecedented flow of aliens generally, and UAC and family migrants in particular.
The harms inflicted on UACs and foreign-national families during their migration to the United States were detailed by the bipartisan CBP Families and Children Care Panel (Panel), which was convened by the Homeland Security Advisory Council, in its April 16, 2019 Final Emergency Interim Report.74
As a preliminary point relevant to this hearing, that Panel noted:
After being held for several days at inadequate and overcrowded holding areas at [U.S. Border Patrol (USBP)] stations, most of the adults — provided they have a child with them and have stated that they fear returning to their country of origin — are issued Notices to Appear (NTA) at a later time before an immigration judge somewhere in the U.S. and then dropped at a local bus station or delivered to already overwhelmed non-profit shelters. The NTA, combined with long delays in the adjudication of asylum claims, means that these migrants are guaranteed several years of living (and in most cases working) in the U.S. Even if the asylum hearing and appeals ultimately go against the migrant, he or she still has the practical option of simply remaining in the U.S. illegally, where the odds of being caught and removed remain very low. A consequence of this broken system, driven by grossly inadequate detention space for family units and a shortage of transportation resources, is a massive increase in illegal crossings of our borders, almost entirely driven by the increase in [family unit (FMU)] migration from Central America.
By far, the major “pull factor” is the current practice of releasing with a NTA most illegal migrants who bring a child with them. The crisis is further exacerbated by a 2017 federal court order in Flores v. DHS expanding to FMUs a 20-day release requirement contained in a 1997 consent decree, originally applicable only to unaccompanied children (UAC). After being given NTAs, we estimate that 15% or less of FMU will likely be granted asylum. The current time to process an asylum claim for anyone who is not detained is over two years, not counting appeals.75
To underscore and clarify those latter points, this bipartisan Panel found that a combination of the lack of DHS resources to adequately enforce the immigration laws at the border, exacerbated by the restrictions on detention in the Flores settlement agreement, is the “major ‘pull factor’” that is drawing migrant families enter the United States illegally.
The Panel is clear that CBP is doing what it can with what it has to assist those migrants:
1. We commend the men and women of CBP, including the [Office of Field Operations (OFO)] officers and USBP agents, for their unfaltering devotion to duty and professionalism during this crisis. There are countless examples of their valiant attempts to aid families and children who have entered our country illegally and still attempt to perform their law enforcement mission to protect our country. However, it is not humanly possible to do both. On any given day, CBP is at half strength or less "on the line" in places at the border, endangering themselves and the country. Turned on its head, CBP personnel are instead tending to the daily needs of thousands of illegal migrants who CBP has already processed but is left holding for days and sometimes weeks in confinement space that was built decades ago and designed to confine only a fraction of these illegal migrants for hours, not days or weeks, and certainly not intended to confine tender age children. One of the highest priorities must be to immediately relieve CBP of all tasks unrelated to its law enforcement mission. The security of our country is at grave risk until then.
2. Tender age children are at the heart of the crisis. Most, 73%, of the children in FMUs illegally crossing our border are tender aged, being 12 or younger
3. The unabated 600% surge of FMUs from Central America to our borders and properly caring for this population have overwhelmed the entire government and brought our border security and immigration management systems to the point of collapse. Although the increase in FMUs began in FY2014, it has recently spiked, after a significant drop in FY2017. In March FY2017, FMU apprehensions accounted for less than 1% (.3%) of all USBP apprehensions. Currently, they constitute nearly 60% (57.6%) of all apprehensions.
4. Apprehensions by USBP, currently at levels not seen in a decade, will approach one million in FY19 unless actions are immediately taken.76
Significantly, and poignantly, the Panel described the horrors that migrant children and their families face on their trek to the United States:
5. 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. 16. 17.
6. Criminal migrant smuggling organizations are preying upon these desperate populations, encouraging their migration to the border despite the dangers, especially in remote places designed to overwhelm existing USBP infrastructure, and extorting migrants along the way, thereby reaping millions of dollars for themselves and the drug cartels who also charge money to cross the border. 20. 21.
7. A substantial number of families and children are entering our country in remote areas of the border versus the [ports of entry (POEs)], enduring dangerous and terrifying crossings in remote desert areas, across rivers, over fences, and through razor wire. These children increasingly require significant personal and medical care that exceeds the ability and capacity of CBP even with their current patchwork of contracted assistance. Despite CBP’s creative and humane attempts to care for these children during their confinement, CBP facilities, both at USBP stations and POEs, are grossly inadequate.77
That report continues:
Children who are crossing the borders of the U.S. are at great risk for multiple medical problems, which include but are not limited to, dehydration, malnutrition, infections, psychological trauma, physical injuries and all aspects of child maltreatment. Many of these sequelae are not necessarily evident within the context of a non-medical evaluation. An expectation for clinical acumen by CBP agents and officers is highly unrealistic. Even medical personnel need to have a higher level of expertise to anticipate some of the potential infectious disease complications that can be found in this population of children.
* * * *
Children are being exploited and placed in danger in many ways –
• Adults fraudulently claiming parentage to a child to gain entry to the U.S. are increasing.
• Some children are being re-cycled by criminal smuggling organizations, i.e. returned to Central America to accompany a separate, unrelated adult on another treacherous journey through Mexico to the U.S. border.
• Human traffickers have extracted additional fees as a form of indentured servitude from FMUs who were released with NTAs and made their way to the interior of the U.S.
• The risk for commercial sexual exploitation of these children and teens is predictably high and will be very difficult to prevent after transport or release into the interior U.S.78
This influx of vulnerable aliens to the United States has stretched CBP and HHS to the breaking point. Consequently, on May 1, 2019 the administration sent Congress a request for “$4.5 billion in emergency funding to respond to the humanitarian and security crisis at the southern border of the United States. . . includ[ing] $3 .3 billion for humanitarian assistance, $1.1 billion for border operations, and $178 million for mission support.”79 That request explained:
The humanitarian assistance request includes $2.8 billion for HHS to ensure that its Office of Refugee Resettlement (ORR) is able to provide all UAC with critical child welfare services and high-quality shelter care, in accordance with programmatic and legal requirements. The funding will enable ORR to increase shelter capacity to approximately 23,600 total beds in order to accommodate the high number of UAC anticipated to be referred to ORR through the remainder of the fiscal year. Given that current referral trends are likely to continue into next fiscal year, this amount also provides ORR the ability to maintain a high bed capacity through December.
There is a significant likelihood that the UAC program will exhaust all of its resources in June. If Congress fails to provide HHS this additional funding, the expected continuation of current trends may require HHS to divert significant resources from other programs that serve vulnerable populations - such as refugees and victims of trafficking and torture. In addition, UAC services that are not necessary for protection of human life, such as education and legal services, as well as recreational activities, would likely need to be canceled or scaled back. Should reallocated funds be exhausted, it is highly unlikely that HHS would be able to acquire the additional shelter capacity it would likely need to continue to accept UAC referrals from DHS in a timely manner, meaning that children would likely stay in DHS facilities for longer than 72 hours following a determination that the child is a UAC. In the worst-case scenario, thousands of children might remain for lengthy periods of time in facilities that were never intended to be long-term shelters, rather than being expeditiously transferred to HHS custody, where they would receive case management and other services that address their unique needs.80
Congress did not act on that request immediately, however. So, on May 30, 2019, Acting Secretary of Homeland Security Kevin McAleenan and acting White House Chief of Staff Mick Mulvaney held a phone briefing on the need for that funding with members of the press.81 That briefing revealed, in shocking detail, the scope and the effects of the disaster that was unfolding along the U.S.-Mexico border. Among the points therein most relevant to today’s hearing:
“Over 2,350 unaccompanied children – the highest level ever – are currently in custody waiting for days for placements in border stations that cannot provide appropriate conditions for them because Health and Human Services is out of bed space and Congress has failed to act on the administration's emergency supplemental request for more than four weeks.”
Despite these facts, Congress failed to provide funding in response to that request until June 27, 2019, 57 days after this funding was requested.82 The provision of that funding was an extremely positive, albeit delayed, response.
The perception and reality of limited government resources to defend the border has fed the impression that large numbers of illegal entrants might be able to overwhelm the border and thus gain entry. In fact, as alluded to above, the expedited and credible fear processes have largely broken down under the weight of apprehensions at the border, facts made clear by the bipartisan Panel in its report83:
More recently, with the expanding crisis, CBP directed that FMUs be released with a NTA within a few days after their surrender to the USBP and preliminary processing. None of these migrants released with a NTA have been given a credible fear interview prior to their release, because there are no USCIS credible fear examiners at USBP stations. Further, these FMUs are not detained by ICE ERO due to their lack of capacity to detain FMUs. ICE ERO has effective capacity to detain only 2,500 FMUs, and that capacity is woefully inadequate given the surge in FMU migration over the past year. Those relatively few FMUs that ICE ERO does detain, however, are given credible fear examinations if they express a fear of return to their home countries.
It is undeniably clear to both potential illegal migrants and smugglers that now might be the best time to attempt entry before the U.S. government is able to regain control of the border.
Recommendations. What should be done?
I don’t have a magic bullet that can solve the crisis at the Southwest border in a single stroke. Plainly, however, throwing open our borders to unlimited numbers of asylum claimants cannot be the right answer. Doing so would only encourage even more unauthorized immigrants to undertake the perilous journey to the United States and stream over the Southwest border before our government can restore order and the legal limits on immigration.
Repealing section 275 of the INA84, as proposed by Julian Castro in last month's presidential-candidate debate, to decriminalize improper entry by aliens into the U.S. would aggravate the crisis at the border, but is certainly within the power of Congress to consider.
Prosecution of aliens for illegal entry is an effective deterrent not only to initial entries into the United States, but also to preventing aliens from reentering the United States repeatedly with virtual impunity. As even Jeh Johnson, Secretary of Homeland Security under the Obama administration, described decriminalization of illegal entry and its effects:
“That is tantamount to declaring publicly that we have open borders. . . . That is unworkable, unwise and does not have the support of a majority of American people or the Congress, and if we had such a policy, instead of 100,000 apprehensions a month, it will be multiples of that.”85
One option is for the U.S. government to deny asylum until the emergency at the border ends. With respect to this recommendation, I would point out that simply meeting the statutory and international definition of refugee does not entitle any non-citizen to asylum in the United States.
In particular, section 208(b) of the INA only provides that the government “may grant asylum to an alien (if the government) . . . determines that such alien is a refugee. . . .”86 As explained by the Supreme Court in INS v. Cardoza-Fonseca87, this makes asylum discretionary even for applicants who meet the definition of refugee.
So one way of dealing with the crisis would be to declare that, until the crisis at the border has abated, the government will no longer exercise discretion to grant asylum in any case, even if the applicant meets the threshold requirement for asylum. This would leave in place the protection of withholding of removal afforded by section 241(b)(3) of the INA for claimants who can meet the higher threshold of it being more likely than not that the applicant would be persecuted if returned to his or her home country.88
That concludes my prepared statement for the record. I’ll close by again thanking Ranking Member Roy for the opportunity to submit this statement.
1 To Secure the Border and Make America Safe Again, We Need to Deploy the National Guard, Dep’t of Homeland Security, APR. 4, 2w018, available at: https://www.dhs.gov/news/2018/04/04/secure-border-and-make-america-safe….
2 Southwest Border Migration FY 2019, U.S. Customs and Border Protection, July 3, 2019, available at: https://www.cbp.gov/newsroom/stats/sw-border-migration.
4 Joel Rose and Bobby Allyn, Scenes Of Tearful, Flu-Stricken And Underfed Migrant Kids Emerge In New Accounts, NPR, June 27, 2019, available at: https://www.npr.org/2019/06/27/736781192/scenes-of-tearful-flu-stricken….
6 Southwest Border Migration FY 2019, U.S. Customs and Border Protection, July 3, 2019, available at: https://www.cbp.gov/newsroom/stats/sw-border-migration.
8 Janet Napolitano, Memorandum: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, DEP’T OF HOMELAND SECURITY, Jun. 15, 2012, available at: https://www.dhs.gov/sites/default/files/publications/s1-exercising-pros….
9 Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities, Dep’t of Homeland Security, Jun. 15, 2012, available at: https://www.dhs.gov/news/2012/06/15/secretary-napolitano-announces-defe….
11 Approximate Active DACA Recipients: Country of Birth. As of August 31, 2018, U.S. Citizenship and Immigration Services, Aug. 31, 2018, available at: https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and….
14 Southwest Border Unaccompanied Alien Children Statistics FY 2015, Dep’t of Homeland Security, Nov. 24, 2015, available at: https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-child….
15 Stipulated Settlement Agreement, Flores v. Reno, Case No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 28, 1997), available at: https://cliniclegal.org/sites/default/files/attachments/flores_v._reno_….
16 In Chambers, Order re: Plaintiffs Motion to Enforce Settlement of Class Action and Defendants Motion to Amend Settlement Agreement, Flores v. Johnson, Case No. CV 85-4544 DMG (AGRx) (July 24, 2015), available at: https://www.aila.org/infonet/district-court-finds-dhs-breach-flores-agr….
18 Stipulated Settlement Agreement, Flores v. Reno, Case No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 28, 1997), available at: https://cliniclegal.org/sites/default/files/attachments/flores_v._reno_….
19 In Chambers, Order re: Plaintiffs Motion to Enforce Settlement of Class Action and Defendants Motion to Amend Settlement Agreement, Flores v. Johnson, Case No. CV 85-4544 DMG (AGRx) (July 24, 2015), available at: https://www.aila.org/infonet/district-court-finds-dhs-breach-flores-agr….
21 Flores v. Lynch, No. 15-56434 (9th Cir. July 6, 2016), available at: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/06/15-56434.pdf.
23 See Unaccompanied Alien Children and Family Units Are Flooding the Border Because of Catch and Release Loopholes, U.S. Dep’t of Homeland Security, Feb. 15, 2018, available at: https://www.dhs.gov/news/2018/02/15/unaccompanied-alien-children-and-fa… (“These legal loopholes lead to ‘catch and release’ policies that act as a ‘pull factor’ for increased future illegal immigration.”).
24 United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016, Dep’t of Homeland Security (updated June 17, 2019), available at: https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-child….
25 Southwest Border Migration FY2017, U.S. Customs and Border Protection (Dec. 15, 2017), available at: https://www.cbp.gov/newsroom/stats/sw-border-migration-fy2017.
26 See, e.g., Executive Order 13767, “Border Security and Immigration Enforcement Improvements” (Jan. 25, 2017) (Sec. 2. Policy: 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; [and] (c) expedite determinations of apprehended individuals’ claims of eligibility to remain in the United States . . . .”), available at: https://www.whitehouse.gov/presidential-actions/executive-order-border-….
27 See Andrew Arthur, Catch and Release Escape Hatches, Loopholes that encourage illegal entry, Center for Immigration Studies (May 4, 2018), available at: https://cis.org/Report/Catch-and-Release-Escape-Hatches.
28 Southwest Border Migration FY2017, U.S. Customs and Border Protection, Dec. 15, 2017, available at: https://www.cbp.gov/newsroom/stats/sw-border-migration-fy2017.
30 Southwest Border Migration FY 2019, U.S. Customs and Border Protection, July 3, 2019, available at: https://www.cbp.gov/newsroom/stats/sw-border-migration.
31 Homeland Security Act of 2002, Pub. L. 107-296 (2002), § 462, available at: https://www.dhs.gov/xlibrary/assets/hr_5005_enr.pdf.
34 See ibid.
35 Flores v. Reno, Stipulated Settlement Agreement, available at: https://cliniclegal.org/sites/default/files/attachments/flores_v._reno_….
36 See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, §235, Pub. L. 110-457 (2008), available at: https://www.congress.gov/bill/110th-congress/house-bill/7311?q=%7B%22se….
37 See ibid.
38 Ibid. § 235(a)(2). 8 U.S.C. § 1232(a)(2).
39 Ibid. at §§ 235(a)(3) and (b). 8 U.S.C. §§ 1232(a)(3) and (b).
40 Ibid. at § 235(c)(2). 8 U.S.C. § 1232(c)(2).
42 Facts and Data, General Statistics, Office of Refugee Resettlement, Feb. 13, 2019, available at: https://www.acf.hhs.gov/orr/about/ucs/facts-and-data.
43 Fact Sheet, Unaccompanied Alien Children Program, Dep’t of Health and Human Services, Admin. for Children and Families, Dec. 2018, available at: https://www.acf.hhs.gov/sites/default/files/orr/unaccompanied_alien_chi….
45 Fact Sheet, Unaccompanied Alien Children Program, Dep’t of Health and Human Services, Admin. for Children and Families, Dec. 2018, available at: https://www.acf.hhs.gov/sites/default/files/orr/unaccompanied_alien_chi….
47 Facts and Data, General Statistics, Office of Refugee Resettlement, Feb. 13, 2019, available at: https://www.acf.hhs.gov/orr/about/ucs/facts-and-data.
48 See Oversight of HHS and DHS Efforts to Protect Unaccompanied Alien Children from Human Trafficking and Abuse: Hearing Before the S. Comm. on Homeland Security and Governmental Affairs, Permanent Subcomm. on Investigations, 115th Cong. (2018) (statement of Steven Wagner, Acting Assistant Secretary, Administration for Children and Families, U.S. Dep’t of Health and Human Services, at 6), available at: https://www.hsgac.senate.gov/imo/media/doc/Wagner%20Testimony.pdf.
49 Section 235(b) of the INA. 8 U.S.C. § 1225(b).
50 Ibid.; section 240 of the INA. 8 U.S.C. 1229a.
51 Hillel R. Smith, An Overview of U.S. Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border, Congressional Research Service, Nov. 27, 2018, available at: https://fas.org/sgp/crs/homesec/LSB10150.pdf.
52 Unaccompanied Alien Child (UAC) In Absentia Removal Orders, Executive Office for Immigration Review, Oct. 24, 2018, available at: https://www.justice.gov/eoir/page/file/1107711/download
53 Total Unaccompanied Alien Children (0-17 Years Old) Apprehensions By Month - FY 2010, United States Border Patrol, undated, available at: https://www.cbp.gov/sites/default/files/assets/documents/2018-Jul/BP%20….
54 Southwest Border Migration FY2018, U.S. Customs and Border Protection, Nov. 9, 2018, available at: https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2018.
55 Comparison of in absentia rates, Executive Office for Immigration Review, Oct. 24, 2018, available at: https://www.justice.gov/eoir/page/file/1083096/download.
56 Unprecedented Migration at the U.S. Southern Border: Perspectives from the Frontline Before the S. Comm. on Homeland Security and Governmental Affairs, 116th Cong. (2019), available at: https://www.hsgac.senate.gov/hearings/unprecedented-migration-at-the-us….
57 Ibid; Sponsor Immigration Status (July 2018-January 2019), available at: https://cis.org/sites/default/files/2019-04/HSGACUAC.pdf.
58 U.S. v. Nava-Martinez, Crim. No. B-13-441-1 (S.D. Tex. Dec. 13, 2013), available at: https://lrl.texas.gov/scanned/archive/2013/24747.pdf.
59 Ibid. at 3-4.
60 H.R.J. Res. 31, § 224,116th Cong. (2019), available at: https://www.congress.gov/116/bills/hjres31/BILLS-116hjres31enr.pdf.
61 INA Section 235(b)(1)(A). 8 USC Section 1225(b)(1)(A).
62 67 Fed. Reg. 68924 (2002).
63 69 Fed. Reg. 48877 (2004).
64 “DHS Announces Expedited Removal Along Northern Border and All Coastal Areas”, 83 Interpreter Releases 253 (2006).
65 INA Section 235(b)(1)(A), (B). 8 USC Section 1225(b)(1)(A), (B).
66 INA Section 235(b)(1)(B)(iii)(III). 8 USC Section 1225(b)(1)(B)(iii)(III).
68 Credible Fear Workload Report Summary FY 2018 Total Caseload, January 2018, U.S. Citizenship and Immigration Services, undated, available at: https://www.uscis.gov/sites/default/files/USCIS/Outreach/PED_CFandRFsta….
69 Data provided by U.S. Citizenship and Immigration Services (USCIS) on March 10, 2016. See also Cindy Chang and Kate Linthicum, “U.S. seeing a surge in Central American asylum seekers”, Los Angeles Times, Dec. 15, 2003, http://articles.latimes.com/2013/dec/15/local/la-me-ff-asylum-20131215; Credible Fear Workload Report Summary FY 2018 Total Caseload, January 2018, U.S. Citizenship and Immigration Services, undated, available at: https://www.uscis.gov/sites/default/files/USCIS/Outreach/PED_CFandRFsta…
70 Sale v. Haitian Centers Council, 509 U.S. 155 (1993).
71 INA Section 235(b)(1)(B)(v). 8 USC Section 1225(b)(1(B)(v).
72 INA Section 235(b)(1)(E). 8 USC Section 1225(b)(1)(E).
73 Credible Fear and Asylum Process: Fiscal Year (FY) 2008 – FY 2019 Quarter 2, Executive Office for Immigration Review, undated, available at: https://www.justice.gov/eoir/page/file/1148916/download.
74 Final Interim Emergency report, Homeland Security Advisory Council, CBP Families and Child Care Panel, Apr. 16, 2019, available at: https://www.dhs.gov/sites/default/files/publications/19_0416_hsac-emerg….
75 Ibid. at 1-2.
76 Ibid. at 6 (emphasis added).
77 Ibid. (Emphasis added).
78 Ibid. at 7.
79 Letter from Russell T. Vought, Acting Director, Office of Management and Budget, to Michael R. Pence, President of the Senate, May 1, 2019, at 2, available at: https://www.politico.com/f/?id=0000016a-7465-d10f-adef-7c6d61c50000.
80 Ibid. (emphasis added).
82 Emergency Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border Act, 2019, Pub. L. 116-26 (2019), available at: https://www.congress.gov/bill/116th-congress/house-bill/3401/actions.
83 Final Interim Emergency report, Homeland Security Advisory Council, CBP Families and Child Care Panel, Apr. 16, 2019, at 7-8 available at: https://www.dhs.gov/sites/default/files/publications/19_0416_hsac-emerg…,
84 See section 275(a) of the INA, 8 U.S.C. § 1325(a).
85 Nick Miroff , Annie Linskey, and Josh Dawsey, At border, grim realities of crisis collide with 2020 campaign politics, Washington Post, July 2, 2019, available at: https://www.washingtonpost.com/immigration/at-border-grim-realities-of-….
86 INA Section 208(b). 8 U.S.C. § 1158(b). (Emphasis added)
87 INS v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987) (“Section 208(a), by contrast, is a discretionary mechanism which gives the Attorney General the authority to grant the broader relief of asylum to refugees.”), available at: https://supreme.justia.com/cases/federal/us/480/421/.
88 Ibid. at 443 (“[A]n alien who satisfies the applicable standard under § 208(a) does not have a right to remain in the United States; he or she is simply eligible for asylum, if the Attorney General, in his discretion, chooses to grant it. An alien satisfying § 243(h)'s stricter standard, in contrast, is automatically entitled to withholding of deportation.”). Section 243(h) of the INA, one of the statutes under consideration in Cardoza-Fonseca, is the predecessor to the current withholding of removal provision in section 241(b)(3) of the INA, as amended by section 305 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 (1996), available at: https://www.uscis.gov/sites/default/files/ocomm/ilink/0-0-0-10948.html