A Broad Look at the Current Border Crisis

This is going to be a long blog post.  Over the past several days, I have spent untold hours responding to questions and trying to clarify immigration law for friends, colleagues, and family members.  Instead of continuing to do this, I wanted to sit down and write a comprehensive blog post that answers most of those questions.

Immigration law is complicated.  To understand where we are, you must understand where we have been.  Furthermore, you must be able to separate fact from fiction.  To cut through the fiction that exists on BOTH sides of this issue, I will provide citations to objective documentation/statistics that are hyperlinked so that you can review them yourself.

Child Separation at the Border and Relevant Law

Early last week, the Trump administration stated that they are compelled to separate children from their parents.  This is false.  On 6 April 2018, the Attorney General issued a memorandum to federal prosecutors that states “I direct each United States Attorney’s Office along the Southwest Border- to the extent practicable, and in consultations with DHS – to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a).”

What’s 1325(a)?  Section 1325(a) is part of the U.S. Code which criminalizes entering the United States outside a designated place of entry, eluding inspection by immigration officers, or misleading or concealing a material fact to gain entry to the U.S.  This a misdemeanor crime for first time offenders.  The maximum penalty is imprisonment for six months and a fine of between $50 and $250.  To the extent that people are claiming that any parent would be separated from their child if they committed a crime, this is a distortion of reality.  If a U.S. citizen in the United States committed a Class B misdemeanor crime, the officer would have discretion as to whether to arrest them.  If the officer decided to arrest the person, the arrested person would be in jail for probably a night, have bail set, and then would be out on bail.  They would not be detained until trial (unless they could not pay bail) and likely would not be sentenced to any jail time for a first offense.  This is also assuming the prosecutor decided to proceed with charges, which is also discretionary.  Most importantly, a “zero tolerance” policy essentially tells law enforcement, we do not trust you to exercise your judgment in enforcing the law.

When parents with children are prosecuted for an illegal entry offense, they are transferred to the criminal system and are out of the custody of DHS (Department of Homeland Security).  This is where Flores comes in.  Flores v. Reno, is a 1997 Stipulated Settlement Agreement.  The agreement, in short, requires the federal government to place “minors in the least restrictive setting appropriate to the minor’s age and special needs” and “when detention of the minor is not required to secure their appearance at immigration court, to release the minor from its custody.”  The agreement also gives preference to whom the child should be released.  Importantly, when there is not a suitable adult to release the child to, the child ends up in foster care.  This means that if this child’s only suitable adult is in custody, that child starts competing with other children, U.S. children, for foster care homes.

Another important law is the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which states that unaccompanied alien children are the responsibility of the Department of Health and Human Services (HHS).  Any federal government agency that detains an unaccompanied alien child must transfer the child to HHS not later than 72 hours after determining that such child is an unaccompanied minor.

I’m sure you have heard in the news that children can only be detained for twenty days.  If you read through Flores, you won’t find that twenty days.  How did we get that?  The Obama administration determined that the requirements in Flores and the TVPRA only applied to unaccompanied minors and not accompanied minors; hence, family detention was acceptable.  Yes, the Obama administration did family detention.  That does not make it any less wrong.  The Ninth Circuit disagreed with the Obama administration in later Flores litigation and we got the 20 day rule.  As a result, the Obama administration moved away from the family detention practice and began releasing minors with their parental custodian, which Trump refers to as “catch and release”.  More on that later.

On 20 June 2018, Trump issued an Executive Order.  This Executive Order states, “[t]he Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members”.  The Executive Order also directs the Attorney General to file a request to modify Flores (which was filed last week) so that DHS can “detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”  In sum, the Trump administration has not ended the “zero tolerance” policy and wants to hold children with their family members through removal proceedings, which will run afoul of the protections provided to children by Flores at the very least.

Limited Resources and Alternatives to Detention

Why did other administrations opt for “catch and release”?  Easy answer:  limited resources.  Conservatives should pay attention here.  An opportunity cost exists for everything.  For every border agent detaining children and families, one less is apprehending a drug smuggler.  For every Assistant U.S. Attorney prosecuting these misdemeanors, that takes time away from other cases.  The daily rate to house one adult in 2016 was $127.82 and the projected daily rate for 2018 is $133.99.  That’s one day!  And remember, housing children and/or families will cost more because Flores requires certain services to be provided to the children.  It’s projected that the emergency tents will cost around $700 a day.  In contrast, alternatives to detention (ATD), such as check-ins with ICE officers and ankle monitors, cost significantly less:  $4.50 a day or less.

The Obama administration also prioritized cases that were prosecuted in immigration courts via the Morton Memo.  In sum, recent entrants, recidivist immigration violators, and criminal aliens were prioritized.  The Trump administration reversed this policy, subjecting non-criminal aliens who have a long residence in the United States to deportation.  The result:  the caseload has increased and the time a case is pending has increased.  Trac Immigration has a tool where you can check out the number of cases pending in each court and the average length of time that it takes a case to be adjudicated in that court.  The Attorney General is also maintaining more cases on the active court docket and re-calendaring “administratively closed” cases (which allowed judges to temporarily remove a case from the docket) per his decision in Matter of Castro-Tum.  Cases are likely to increase in the immigration court system because of actions the Government has taken.  A class action lawsuit filed on behalf of asylum seekers who were not informed of the one year filing deadline for asylum will allow those cases to proceed as if timely filed.  Last week, the Supreme Court held that immigration court charging documents (Notices to Appear) needed to include the time and date of the proceedings in order to be “Notice to Appear”.  The Government admitted that “almost 100 percent” of “notices to appear omit the time and date of the proceeding over the last three years.”  Since this document confers jurisdiction on the immigration court, legal challenges to the immigration court’s jurisdiction in cases where a charging document was defective are expected.

The big objection to using alternatives to detention(ATD) is that people will not show up for court.  Now, the number that I have been hearing on the news is that 99% of people show up to deportation hearings that are in (ATD) programs.  True, but not.  That number is accurate with respect to ICE’s Family Case Management Program, but the Trump Administration ended that program last year.  That number is also accurate with respect to full service ATD programs, meaning the alien has a caseworker and they have phone check-ins or GPS monitoring (very similar to being out on bail in the criminal system).  However, that number drops to 95% prior to the final deportation hearing.  As of the last Government Accountability Office report, there was not reliable data on technology only (GPS) monitoring, but the budget justification from Immigration and Customs Enforcement (ICE) states, “ICE has seen strong alien cooperation with ATD requirements during the adjudication of immigration proceedings”.  In sum, we do have a means for tracking people and getting them to go to court without detention.

Border Apprehensions and Increased Asylum Claims

Now, let’s explore who is coming to the border, in what number, and why.  Customs and Border Protection statistics show that in fiscal year 2017, border apprehensions were 303,916.  In 2016, that number was 408,870.  The southwest border apprehensions from October 2017 to May 2018 (FY 2018) were 252,187.  If flow stays steady for the next four months, that number should be about 378,280 for the year.  Now, the website states that “the number of family units increased 435 percent and the number of unaccompanied children (UAC) increased by 329 percent compared to May 2017.  In May 2018, we had 6,405 (UAC) and 9,485 family units.  CBP also has statistics which includes asylum seekers, but the number is combined with other persons determined to be inadmissible at the border, so it is not particularly useful.

Now, Trump has said there has been a huge increase in asylum claims.  First, what is an asylum claim?  To be granted asylum, a person must show that they are a refugee.  A refugee has been subjected to past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.  This definition comes from the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, of which the United States is a signatory.  The U.S. has enshrined that definition into law at 8 U.S.C. § 1101(a)(42).  Now, at a press briefing on 19 June 2018, DHS Secretary Nielson was asked about people seeking asylum being turned away from ports of entry.  She responded:

“That actually is incorrect.  We have limited resources, we have multiple missions at C.B.P. and what we do is based on the very high standards we have, if we do not have enough bed space, if we do not have enough medical personnel on staff, if we do not have enough caretakers on staff, then we will tell people that come to the border that they need to come back.  We are not turning them away.  We are saying we want to take care of you in the right way, right now we do not have the resources at this particular moment in time, come back.”

If you do not trust the transcript from the New York Times, here’s the video.  There’s a serious problem with that:  8 U.S.C. § 1158(a)(1), which states, “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought into the United States after having been interdicted in international waters), irrespective of such alien’s status, may apply for asylum in accordance with the section or, where applicable, section 1225(b) of this title”.  Asylum seekers, who must be on U.S. soil, are being turned away at the border.  Then, they are prosecuted for entering illegally in order to make their claim.

The first step in claiming asylum is a credible fear interview.  If the alien establishes a “significant possibility” that he or she could establish asylum in a full hearing, they are referred to an immigration court for a full hearing.  If they are found not to have a credible fear, they can request a review of that determination by a judge (not a full hearing).  If the judge concurs that there is not credible fear, they are deported.  DHS tracks credible fear interviews.  In 2007, there were 5,171 credible fear cases completed and 61.52% were referred to an Immigration Court for a full hearing. In 2016 there were 91,786 credible fear cases completed and 79.55% were referred to an Immigration Court for a full hearing.  Trump is right:  there was a huge increase in claims.  However, a larger percentage were determined to have a credible fear. The countries with the highest credible fear claims for the last three years have come from El Salvador, Honduras, and Guatemala.  The approval rate for asylum claims in Immigration Court in 2012 was about 21% and in 2016 it was about 13%.

Problems in the Northern Triangle and Assault on Asylum Claims for Applicants from Those Countries

Why are so many people from El Salvador, Honduras, and Guatemala claiming asylum?  Many of the people fleeing these countries are fleeing either gang violence or domestic abuse.  Gang violence is horrific.  In all three countries there is a gang rivalry between MS13 and Barrio 18.  As the countries crack down and lock up members, the gangs start targeting younger and younger children for forced recruitment or to be a “girlfriend” of the gang.  Refusal on either count can get the child killed or family members killed.  These gangs are poor, and most of their income comes from extorting the populations that they live among.  The penalty for failing to pay the extortion or “la renta” is death.  Their power primarily comes from violence.  All three countries also have abysmal records on domestic violence, high rates of femicide, and almost complete impunity for harming a woman.  You can read about these three counties and the gang wars on your own.  The Department of State Country Reports and the OSAC Crime and Safety warnings are quite instructive.  Latin America Working Group has some great articles as well.

This month, Attorney General Jefferson Sessions unilaterally determined (he referred a case to himself) in Matter of A-B- that gang violence and domestic violence are an insufficient basis on which to claim asylum in most cases.  In this case, Sessions overruled Matter of A-R-C-G-, which recognized “married women in Guatemala who are unable to leave their relationship” as a particular social group for the purpose of asylum.  Sessions stated, “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.”  To qualify for asylum, an applicant claiming persecution based on non-governmental actors must show the government is unable or unwilling to control the actors.  Sessions determined that victims of domestic violence or gang violence could not meet that standard:  “the mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

I challenge anyone who thinks this is a policing problem to read the country reports.  They do not police these crimes at all.  A domestic violence victim in America is not 100% protected against his or her abuser, but police will make the report, they will investigate it, they will arrest the perpetrator if there is sufficient evidence.  That’s not the case in these three countries.  As an interesting aside, check out the Department of State country report for El Salvador in 2016.  If you go to page 21 of the report, you will find the “rape and domestic violence” section, which notes rape is widespread, domestic violence is widespread and socially acceptable, the statistics on femicide, and how gang violence affects women differently.  This section spans a little more than two full pages.  Now, check out the recently released 2017 report and look at the same section on “rape and domestic violence” on page 23.  All the statistics on impunity for domestic violence are gone and all that remains is that domestic violence is criminalized.  It is now less than half a page.  The harm by non-governmental actors was basically erased.

I do want to touch on another case that the Board of Immigration Appeals decided this month:  Matter of A-C-M-.  One of the bars to asylum is whether the alien has afforded material support to a terrorist organization.  In that case, the alien from El Salvador was kidnapped by guerrillas, required to perform cooking and cleaning for the guerrillas under threat of death, and forced to witness her husband dig his own grave before being killed.  This is not an exaggeration.  See page 3.  The Board determined that by cooking and cleaning under force, the alien provided material support to the guerrillas; thus, her asylum claim was barred.  Now, El Salvador has designated MS13 a terrorist organization.  Sessions has indicated that MS13 could be designated a terrorist organization by the US.  It is easy to see how paying “la renta” to MS13 could be termed “material support” under Matter of A-C-M-, barring asylum claims for anyone who has been extorted by the gang.

It also bears noting that temporary protected status (TPS), which gives certain persons the right to live and work in the United States, will end for El Salvador on 9 September 2019.  TPS will end for Hondurans on 5 January 2020.

Summation

  • The “zero-tolerance” policy wastes law enforcement and prosecution resources by detaining and prosecuting minor offenders. Let the people on the ground make the call.
  • Keeping kids in detention with their families per the Executive Order is not likely to be upheld under Flores.
  • Detention is expensive. It is more expensive for children and families.
  • Alternatives to Detention are cheaper and are effective according to Immigration and Customs Enforcement.
  • We have an increased number of unaccompanied children and families at the border.
  • We have an increased number of asylum claims from El Salvador, Honduras, and Guatemala.
  • El Salvador, Honduras, and Guatemala are experiencing extreme levels of violence causing women and children to flee.
  • Women and children are going to continue to flee because any punishment that they receive from the U.S. government is better than certain death.
  • Our government is systematically making it more difficult for people from El Salvador, Honduras, and Guatemala to succeed in their asylum claims or remain here under temporary protected status (TPS).

Final Thoughts

This section is going to be my opinion.  The wave of persons, particularly women and children, fleeing the Northern Triangle is not going to stop unless and until it is safer in those countries.  Throwing money at the problem is probably not the best solution.  As the country reports show, all three countries have serious corruption problems.  The Trump administration’s approach of making asylum claims more difficult for persons from those countries and eliminating temporary protected status (TPS) is not going to help the problem either.  As stated, the primary source of income to MS13 and Barrio 18 is extortion.  You are essentially sending these people to their home countries with targets on their backs, which will likely result in more money and power for the gangs.  This is a refugee crisis, not a migrant crisis.  Our immigration court system is overburdened and is desperately in need of qualified judges.  Immigration Courts need to be removed from the executive branch and insulated from executive whims.  As Dana Leigh Marks, past president of the National Association of Immigration Judges, stated, “complex and high stakes matters, such as asylum cases that can be tantamount to death penalty cases, are being adjudicated in a setting that most closely resembles traffic court.”

While the Trump administration has been touting that immigrants take jobs away from Americans, the administration increased the number of visas available for temporary non-agricultural workers in May 2018.  If we have jobs available, why not let them work and stay here at least temporarily until the violence in the Northern Triangle is under control via a guest worker program or the extension of TPS?  They pay money to the U.S. government for their application and to have a background screen.  For those that qualify, they are safe.  The U.S. has more workers paying taxes and paying into social security that cannot draw from it.  Everyone wins.  Obviously, there would need to be some sort of limit on this dependent on what the market can bear.  We do not need to traumatize children by separating them from their parents or jailing them indefinitely.  We do not need to overburden our foster care system.  We do not need to keep increasing the size of the federal government by detaining all recent entrants in jails and for-profit detention centers.  We have more cost-effective methods for ensuring court appearances that are used in the criminal system and have worked in the immigration system.  We do not need to fail to arrest anyone within 100 miles of the border nor do we need to turn away asylum seekers.  The binary choice of stopping immigration entirely or open borders being presented is a false dilemma.  Immigration is complicated, but many of the solutions are not when we understand the problem and use common sense.