Understanding the decade-long series of specific decisions that led to chaos
The chaotic humanitarian and national-security disaster at the Southwest border did not happen overnight. Although the Biden administration has made it much worse by ham-handedly trashing successful policies put in place by his predecessor to gain control of the border, the disaster is the natural end-product of a series of specific decisions, likely well-meaning but poorly thought-out, over a period of more than a decade. Here they are.
TVPRA, and the Unaccompanied Alien Child Surge
The problem with bad policies is that they are usually enacted with the best of intentions by people who should know better. The best example of this is section 235 of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).
Under that provision, if DHS encounters an unaccompanied child (UAC) from a “contiguous” country (Canada or Mexico), it must screen that child within 48 hours to determine if he or she has an asylum claim or has been trafficked. If the child does not fear return and has not been trafficked, the child can be sent back home. So far, so good.
If the UAC is from a non-contiguous country, however, DHS must transfer the child within 72 hours to the Department of Health and Human Services (HHS), even if the child has not been trafficked and has no fear of return. HHS puts those children in shelters it runs or for which it has contracts, almost always for quick placement with a sponsor in the United States.
Those children are also placed into removal proceedings, but almost 41,700 of them failed to show between FY 2014 and FY 2020.
Already in FY 2021, Border Patrol agents have apprehended more than 112,000 UACs at the Southwest border. Not surprisingly, almost 92 percent of them were from non-contiguous countries, because they (or more precisely the family members who paid the smugglers to begin with) know that, thanks to TVPRA, once they enter illegally, they are here indefinitely — if not for good.
How do I know that? Border Patrol keeps statistics on the number of UACs agents apprehend on a monthly basis. Those statistics only go back to October 2009, because before TVPRA was passed, alien children rarely crossed the border illegally without an adult.
The problem is getting worse, given that the 18,719 unaccompanied children apprehended by Border Patrol in March was the highest monthly total ever. Second place? July, with 18,689 UAC apprehensions at the Southwest border.
Of course, I don’t need to rely on statistics alone to prove my point.
In June 2014, facing his own UAC crisis at the Southwest border (there were 10,620 UAC apprehensions that month), President Obama sent a letter to leaders in the House and Senate requesting that they provide DHS “additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador”.
In other words, Obama was asking Congress to amend section 235 of the TVPRA and eliminate that section’s special treatment of unaccompanied children from non-contiguous countries.
You don’t need to read between the lines, though, because the editorial board of the Washington Post clarified the point in August 2014: “Inadvertently, [the TVPRA] has encouraged thousands of Central American children to try to reach the United States by granting them access to immigration courts that Mexican kids don’t enjoy.”
Like Baby Huey, the anthropomorphic cartoon duck from the 1950s who, in his attempts to make things better, left disaster in his wake, the Congressional Democrats who enacted section 235 of the TVPRA to improve the conditions for UACs instead condemned tens of thousands of them to harm and trauma on the illegal trek to the United States.
The Morton Directive to Release Aliens in Expedited Removal Proceedings
Back in 1996, Congress created a new procedure to quickly remove aliens who had entered the United States illegally, known as “expedited removal”. As the House of Representatives explained at the time:
The purpose of these provisions is to expedite the removal from the United States … aliens who indisputably have no authorization to be admitted to the United States, while providing an opportunity for such an alien who claims asylum to have the merits of his or her claim promptly assessed by officers with full professional training in adjudicating asylum claims.
That “prompt assessment” of asylum claims is done through a process known as “credible fear”, essentially a screening process to determine whether an alien in expedited removal may be eligible for asylum. If an alien is found to have credible fear, the alien (under current law) is placed into removal proceedings to apply for asylum; if not, the alien is supposed to be removed.
The congressional Republicans who came up with expedited removal were likely a bit more jaded about the possible consequences of the “credible fear” exception, because they mandated that those aliens be detained throughout the entire process: From apprehension, to the credible fear interview, through removal proceedings, to either an asylum grant or denial.
Fear of loopholes was not the only driving force behind that detention mandate. The drafters also knew about the August 1992 entry of Ramzi Yousef, the mastermind of the first (February 1993) World Trade Center bombing.
He and fellow conspirator Ahmad Ajaj flew into JFK airport in New York on bogus documents (a fake Iraqi passport for Yousef, a fraudulent Swedish one for Ajaj). Both were sent to secondary inspection, and while Ajaj was detained initially (inspectors looked askance at the bomb making manuals he was carrying), Yousef asked for asylum and was released on the spot.
As the 9/11 Commission staff report explained (in a bit of understatement): “Not surprisingly, Yousef never appeared for his hearing. The World Trade Center was bombed on February 26, 1993.” (Emphasis in original.)
DHS complied with the detention mandate for aliens in expedited removal until December 2009, when then-ICE Director John Morton issued a directive that aliens who had received a positive credible fear assessment should generally be released from DHS custody on parole under section 212(d)(5)(A) of the Immigration and Nationality Act (INA).
Asylum officers (AOs) completed 5,173 credible fear cases in FY 2009, before the Morton parole directive went into effect. Those claims grew to 8,926 in FY 2010, 11,716 in FY 2011, and 13,607 in FY 2012, before increasing by almost 280 percent, to 36,454, in FY 2013. It may have taken a while for smugglers to catch on to the scam, but once they did, I trust it featured prominently in their illicit sales pitches.
By FY 2019, AOs were adjudicating more than 102,000 credible fear claims (they received 105,000-plus that year, but couldn’t keep up) as smugglers discovered and exploited the “credible fear” loophole that allowed illegal migrants to live and work in the United States indefinitely.
Curiously, the Trump administration never rescinded the 2009 Morton directive, despite the fact that it directly contravenes the law. I will give the 45th president a pass, however, because by the time that he took office, there were too many aliens in expedited removal to detain them all.
Instead, he implemented the Migrant Protection Protocols — “MPP”, better known as “Remain in Mexico”. MPP effectively satisfied the expedited-removal detention requirement by denying illegal migrants free movement in the United States, and sending then back across the border to await their removal proceedings instead.
Some 68,000 migrants who had claimed credible fear were returned to Mexico under MPP and paroled into the United States to make asylum claims. Under MPP, between July and September 2019, the number of credible fear claims USCIS received dropped 59 percent.
The Biden administration, based on little more than a loathing of Donald Trump and his immigration policies, attempted to end MPP on June 1.
As DHS had determined in its October 2019 assessment of MPP, however, the program speeded the adjudication of legitimate asylum claims while deterring bad ones. As a consequence, “aliens without meritorious claims — which no longer constitute a free ticket into the United States — are beginning to voluntarily return home.”
MPP worked, and DHS cannot currently comply with the congressional mandate that aliens in expedited removal proceedings be detained. For these reasons, when states sued the Biden administration over MPP’s termination, a federal judge concluded that the Biden administration had failed to explain why it was ending the successful program (and what it planned to do instead), and enjoined the president’s efforts to end it.
Both the Fifth Circuit and the Supreme Court have denied the Biden administration’s requests to lift that injunction. Of course, none of this would have been necessary had Morton not decided — in contravention of clear congressional direction — to release aliens in expedited removal from custody on parole.
Flores and the Surge in Alien Families
Not only single adults with bogus asylum claims took advantage of Morton’s kind-hearted but poorly thought-out release decision. Adults and children travelling in family units (FMUs) did, too.
Like the illegal entry of unaccompanied alien children, families entering illegally also are a new phenomenon. If you know anything about the debased and savage nature of human traffickers and smugglers, or have seen the inhospitable nature of the Southwest border, or are familiar with the dangers of the trek to that border, you would know that bringing a kid with you on the journey is recklessly stupid.
Consequently, most adults left their children back home when they entered illegally, and sent those kids money from the United States. Eventually, however, the lure of easy entry and the desire to have family close overcame common sense, and parents decided to set out with their children on what was promised, thanks to the Morton directive, sure passage into the United States.
By FY 2013, more than 15,000 aliens in family units were apprehended by Border Patrol entering illegally at the Southwest border, a number that increased to more than 68,000 the next fiscal year.
To its credit, as I explained in January, the Obama administration knew that this was a problem, and decided to detain most FMUs who had entered illegally to dissuade others. Consequently, the number of aliens in family units who were apprehended in FY 2015 fell to just less than 40,000.
The just-less-than 40,000 figure for FY 2015 is actually deceptively high, because of what one federal judge did partway through that year in response to the Obama administration’s FMU detention efforts.
To backtrack, starting in the mid-1980s, immigrant advocates sued the government over the detention of alien children by the former INS. Those efforts were largely unsuccessful, but in 1997, the Clinton administration entered into a settlement agreement in a case then known as Flores v. Reno, which governed the conditions of alien children and their release.
Flores was supposed to end when regulations doing the same thing were issued, but that has never happened successfully (the Trump administration tried, at least, but was blocked by the courts in an effort the Biden administration refused to continue). And while TVPRA likely ended Flores, because Congress never explicitly said so, the courts have kept it going.
Flores required that alien children be detained in licensed facilities, a requirement that the Obama administration was not complying with as related to the children in FMUs, but it had its reasons.
There is no federal licensing requirement (again, the Trump administration tried), and there are no state licensing standards because states don’t detain children with their parents after criminal proceedings. Plus, Flores had never been applied to children who were accompanied by their parents, only to those travelling alone.
Where there is a will, however, activist judges will find a way, and in February 2015, the Flores plaintiffs filed a motion with U.S. district court Judge Dolly Gee (who oversees Flores) to enforce the settlement agreement.
They asserted that the Obama administration was in breach of the agreement, both because it had adopted a no-release policy, and because Obama’s detention facilities for families did not comply with the licensing requirement.
Judge Gee agreed, and in August 2015 ordered that those children and their families be released within 20 days of apprehension. The Obama administration appealed, and in July 2016, the Ninth Circuit reversed Judge Gee on the parental release requirement, but sustained her order on a 20-day release standard for the children.
DOJ never appealed that decision, and to avoid “family separation”, the parents were usually released, too.
FMU apprehensions at the Southwest border, which totaled fewer than 40,000 in FY 2015, almost doubled to nearly 77,700 in FY 2016. That trend continued until Trump’s inauguration, reaching more than 16,100 in the month of December 2016 alone.
Trump’s 2016 campaign rhetoric plainly dissuaded large numbers of foreign nationals from entering illegally, at least until they realized that he could not sweep away the bad laws and court decisions. Total apprehensions began to tick up in May 2017 (but still totaled fewer than 16,100) as did FMU apprehensions (again, though, just to 1,580).
Once Trump’s legal limitations became evident, though, it was game-on for smugglers and their clients, but especially for migrant families. April 2018 saw more than 38,000 apprehensions at the Southwest border, of whom more than 9,600 were adults and children — a 762 percent increase over the same month a year before.
In response, Attorney General Jeff Sessions dusted off the Bush-era zero tolerance policy at the border, pursuant to which all adult illegal entrants were to be prosecuted for illegal entry. A hostile press and poor execution turned it into a PR disaster, as parents were sent to DOJ custody for their hearings, leaving children who were now deemed “unaccompanied” and sent to HHS.
Trump had to end zero tolerance in June 2018 (it was in effect for about six weeks) amidst a hue and cry over “family separation” that dogged the president all the way through the 2020 elections. After zero tolerance ended, the floodgates were opened, and FMU apprehensions surpassed 473,000 in FY 2019 — more than 55 percent of all Border Patrol apprehensions that fiscal year.
Those families were the main reason that Trump implemented MPP to begin with, and as DHS noted in its October 2019 assessment of the program: “Border encounters with Central American families — who were the main driver of the crisis and comprise a majority of MPP-amenable aliens — have decreased by approximately 80%.”
Thanks to MPP and Trump’s other border policies, illegal migration fell and stayed (relatively) low until the Covid pandemic slowed travel — including illegal migration. Although the pandemic continues, though, illegal migration, including and especially of migrant families, has surged since Biden took office.
With one month left for CBP to report year-end statistics for FY 2021, Border Patrol apprehensions at the Southwest border are nearly 1.5 million and may well set a new record, passing the previous record of 1.64 million in 2000.
Why? Biden’s rhetoric and vows to erase Trump’s border policies drew illegal migrants, and then his follow-through on those promises drew even more. But Biden’s policies only made the pre-existing loopholes encouraging illegal migration worse.
Correlation may not always mean causation, but there is no factor other than her decision that explains why the number of migrants in family units ballooned over the past six years, aside from Judge Gee’s 20-day release order in Flores.
The number of aliens in FMUs apprehended at the southern border in the single month of August 2021 (79,754) was more than the number for all 12 months of FY 2014 (68,445), and double the figure for FY 2015 (39,838), when that decision was issued.
Judge Gee’s order in Flores made illegal entries by families at the Southwest border bad; Biden’s policies made them so much worse.
That is not just an issue of national sovereignty and security, or even law enforcement: It’s a humanitarian catastrophe. In an April 2019 report, a bipartisan federal panel examining the surge of families at the Southwest border noted that:
Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.
That is not me saying that: It’s people like panel members Jim Jones, Bill Clinton’s ambassador to Mexico; Theresa Cardinal Brown from the immigration expansionist Bipartisan Policy Center; and Leon Fresco, Sen. Chuck Schumer’s (D-N.Y.) former principal advisor and the lead immigration guy at Obama’s DOJ (who failed to appeal the Flores decision to the Supreme Court).
They described the children in those family units as “pawns” who were being used “by adult migrants and criminal smuggling organizations solely to gain entry into the United States”, and called on Congress to fix Flores by clarifying that it only applies to unaccompanied children.
Congress has failed to act, and the Biden administration is uninterested, to say the least. So the trauma to those kids, the rapes, the robberies, the hostage-taking, and the extortion continues unabated.
Biden’s Plans to Exacerbate the Problems
It would be bad enough that the president has no interest in fixing the humanitarian and national-security disaster at the border, but he actually wants to make it exponentially worse.
Unlike his old boss, Biden isn’t asking Congress to amend the TVPRA to discourage parents from having their children smuggled into the United States. He certainly doesn’t want to reinstate MPP (although he is being forced to) or expand detention at the border to comply with the law and dissuade illegal migrants; he actually wants less funding for detention. And if he has any thoughts on Flores, he hasn’t expressed them or done anything about it.
No. Instead, as I explained in posts on August 18 and August 31, he wants to expand asylum eligibility beyond any previously recognizable limits, create a system under which his political folks at DHS can ensure that as many aliens are granted asylum as possible, and seize the authority to release every illegal migrant he wants, Congress and its mandates be damned.
As the foregoing reveals, the fewer illegal migrants who are detained, the more will subsequently follow to exploit the newest loophole and all of the previous ones that have not been closed. It happened with TVPRA, it happened with the Morton directive, and it happened with Flores.
Biden wants to take the current border disaster and supercharge it, like feeding an already overactive teenage boy Red Bull and cappuccinos. Why? “To Provide Safe and Orderly Processing of Asylum Seekers at the United States Border”. Any system under which more mothers are raped, more children are trafficked, and more migrants are held for ransom is the opposite of “safe and orderly”, meaning that the president is either ignorant, addled, or lying.
Illegal immigration does happen, and although there are many factors that encourage foreign nationals to leave their homes and venture illegally to the United States, the biggest ones are the loopholes that (likely) well-meaning people have created, and that facilitate illegal entry and resettlement in this country. To paraphrase “Field of Dreams”, if you open the border, they will come.
You can look at the timelines and the statistics and see that TVPRA, the Morton directive, and Flores are the major loopholes that have encouraged aliens to enter illegally (Morton and Flores in tandem). The administration can close those loopholes, secure the border, and protect human dignity, or it can make the chaos at the border worse. Regrettably, they are in the process of making it much, much worse.