National Review
The Border Crisis Started in D.C. — and the Ninth Circuit
In February, Border Patrol apprehended 96,974 illegal entrants at the Southwest border — a 15-year high for the month. The migrants were very different from those in February 2006, however, as many are now coming to exploit loopholes created years ago in Washington — and the Ninth Circuit. Historical Trends Before 2011, 90 percent of illegal-migrant apprehensions were of single adults, mostly from Mexico. Last month, though, fewer than 71 percent were of single adults, while about 9.6 percent were of minors traveling without parents (known as “unaccompanied alien children” or “UACs”), and 19.5 percent were of adults with children (family units or “FMUs”). Of unaccompanied minors apprehended this fiscal year, 63 percent came from the Northern Triangle of Central America (NTCA) — El Salvador, Guatemala, and Honduras — as did almost 64 percent of those in family units. Yet fewer than 31 percent of single adults were from the Northern Triangle countries. (In fact, nearly 60 percent were from Mexico.) The total percentage of actual migrants who are unaccompanied children and families may be higher than these figures suggest, as 40 percent of the migrants recently apprehended had been expelled and reentered, but as explained below, families and children (in particular) are less likely to have been expelled. If, as Department of Homeland Security secretary Alejandro Mayorkas asserted, “poverty, high levels of violence, and corruption” in Mexico and the NTCA are driving illegal immigration, the percentages of single adults, minors, and families from the Northern Triangle should be roughly the same. But, they are not, because loopholes in the law have encouraged the entry of “other than Mexican” (OTM) minors and families. Flores The first of these loopholes is the Flores settlement agreement, entered into by Department of Justice in 1997. The agreement, which remains in effect, requires unaccompanied minors to be placed in licensed shelters, and encourages their release from custody. But the terms of Flores have come to be applied more broadly. In FY 2014, Border Patrol apprehended more than 68,445 people in family units, resulting in a 360-percent yearly increase. The volume strained the agency’s limited resources; while Mexican nationals could be quickly returned, members of migrant families from elsewhere could not be, taking Border Patrol on average 78.5 hours to process. Border Patrol facilities, though, were built to hold adults for a few hours, not families for days. The Obama administration responded by detaining families in unlicensed facilities, but the Flores plaintiffs asserted that this “no-release” policy violated the settlement. In 2015, the judge overseeing Flores held that it also applied to children traveling with family, requiring their release in 20 days. In July 2016, the Ninth Circuit affirmed this order. To avoid family separation, the parents are usually released, too. Not surprisingly, the number of non-Mexican families swelled, increasing 169 percent between FY 2015 (39,838) and FY 2018 (107,212). In FY 2015, 86 percent of migrants in family units were from the Northern Triangle; three years later, 96.5 percent were. Legislation Other loopholes have been the work of Congress. In the Homeland Security Act of 2002, which created DHS and abolished the Immigration and Naturalization Service, Congress gave the U.S. Department of Health and Human Services responsibility for detaining minors. Six years later, in the Trafficking Victims Protection Reauthorization Act (TVPRA), Congress distinguished Canadian and Mexican unaccompanied minors from those of other countries. Under TVPRA, minors from Mexico and Canada can be quickly repatriated if they don’t fear harm and haven’t been trafficked. Those from other countries, however, must be sent to HHS, regardless of whether they have an asylum claim or have been trafficked. HHS detains the minors in contract shelters, and TVPRA mandates that most be placed with a sponsor in the United States. In 2017, DHS reported that approximately 60 percent of minors were placed with a parent illegally here, suggesting parents were exploiting the law to reunify with their children abroad. Worse yet, in December 2013, a federal judge sentencing his fourth smuggler of minors in four weeks remarked: “In each case, the DHS completed the criminal conspiracy . . . by delivering the minors to the custody of the parent in the United States.” Not surprisingly, apprehensions of minors skyrocketed by almost 250 percent following the passage of TVPRA, from 19,688 in FY 2009 to 68,541 in FY 2014, when, as noted, there was a border surge. And whereas 82 percent of unaccompanied minors in FY 2009 were Mexicans, 75 percent in FY 2014 were from the Northern Triangle. ‘Zero Tolerance’ and the 2019 Surge To discourage “irregular” migration, then–Attorney General Jeff Sessions in May 2018 implemented a “zero-tolerance” policy, directing criminal prosecution of all illegal entrants. The administration’s policy applied to parents traveling with children (who passed into DOJ custody for prosecution), but not to children themselves. When their parents were prosecuted, children were deemed unaccompanied and required by law to be sent to HHS for placement with a sponsor, resulting in “family separation.” Facing criticism, President Trump in June 2018 directed adults to be detained in DHS custody with their children during criminal prosecutions, but CBP subsequently stopped referring most illegal entrants for prosecution. Apprehensions of families subsequently surged to 473,682 in FY 2019 — a 441-percent yearly increase, creating a border “crisis.” Of those families, almost 90 percent were from the Northern Triangle. In April 2019, a bipartisan federal panel tasked with assessing that crisis issued a report, finding: The surge in FMU migration will continue to soar, endangering more and more children making the treacherous 2,000 mile trek to our border and crossing illegally into the U.S. at dangerous and remote areas between ports of entry (POE), until the dynamics causing this trend are changed. Why was the migration of families “soar[ing]”? Those migrants should have been placed in “expedited removal”– that is, quickly assessed by DHS to determine whether they had an asylum claim. If they didn’t, they should have been detained, then swiftly removed. The processing, care, and transport of those families, however, consumed 40 percent of Border Patrol’s resources, leaving it undermanned. And, because ICE could only detain families for 20 days under Flores, it only maintained appropriate detention space for 2,500 family members. Consequently, CBP was skipping expedited removal and simply releasing families with a Notice to Appear (“NTA,” the charging document in removal proceedings), to await asylum hearings that could take five years to complete — time those aliens would remain in the United States. Even then, the panel found, most were denied asylum, but “very few” were actually removed. The panel concluded Border Patrol’s release of families with just an NTA was “by far, the major ‘pull factor’” encouraging more FMUs to enter illegally, “further exacerbated” by the Ninth Circuit’s Flores decision. It called on Congress to fund centers where families would be detained while their asylum claims were quickly heard, and to implement a “Flores fix” to make clear that the settlement agreement doesn’t apply to children traveling with family. It also recommended amending TVPRA to allow repatriation of unaccompanied minors to parents back in their countries seeking reunification, and altering the asylum laws to require migrants to make claims at legal ports of entry — not after entering illegally. Congress didn’t implement these recommendations, so Trump worked with Mexico to control its southern border, and implemented initiatives to discourage illegal entries. Among these were the Migrant Protection Protocols (“MPP”, also known as the “Remain in Mexico” program), which returned non-Mexican migrants to Mexico to await their U.S. asylum hearings. In September 2019, after implementation of these initiatives, apprehensions fell 70 percent, to 40,507, from 132,856 in May. In response to the coronavirus pandemic in March 2020, the CDC issued “Title 42” orders, requiring the expulsion of most illegal migrants to Mexico. Apprehensions plummeted to 16,182 in April 2020, as migrants realizing they wouldn’t be released into this country stopped coming. They inched up thereafter, but boomed to 96,974 in February after President Biden had ended MPP and other Trump policies — again, a 15-year high. While most are expelled under Trump-era Title 42 orders (for now), unaccompanied minors — and increasingly, families — are not. Replaying much of 2019, many are quickly released. Unless these loopholes are plugged, the border crisis will become a disaster. But, the Biden administration doesn’t appear to have any plans to do so.
