“Crises” and “surges” at the southern border—03-12-21

Immigration news, in context

This is the seventy-first edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we break down the idea that there’s a “crisis” at the border.

  • In Under the Radar, we discuss the end of the Trump administration’s expanded public charge rule.

  • In Next Destination, we look at the return of the Central American Minors Program.

The Big Picture

The news: The Biden administration’s PR fears have been realized as the narrative of “floods” and “surges” of asylum seekers arriving at the southern border in a “border crisis” takes hold and migrates from conservative to mainstream media. This was always going to happen, but the rhetoric is overblown.

What’s happening?

A quick Google search of the term “border crisis” yields dozens of results from just the past week, many of them linking to articles, essays, and op-eds that either obliquely or directly accuse the president of fomenting such crisis by very slowly opening up the southern border to the same type of asylum processing that was the norm before Trump’s most draconian restrictions. A notable example is Texas GOP Governor Greg Abbott doing away with the state’s coronavirus-response measures and mask mandate only to turn around and make the evidence-free claim that the small trickle of migrants being let in is driving the state’s COVID spread.

The administration itself has taken steps to combat the narrative, with Homeland Security Secretary Ali Mayorkas recently responding to a question about the crisis by saying there was none, only a “challenge” that the government had to deal with. It has also taken great pains to emphasize that it is not actually planning on fulfilling its international humanitarian obligations on asylum anytime soon, having kept the CDC Title 42 order—the most restrictive of Trump’s asylum-targeting policies—in place for adults and families, though not unaccompanied children. The order, which was ostensibly a coronavirus-response measure (a purpose disputed at the time of its initial issuance by CDC career staff), allows border officials to immediately expel people without documentation, including asylum seekers, without any further due process.

Roberta Jacobson, former U.S. ambassador to Mexico and current White House special advisor with the somewhat murky title of “coordinator for the southern border,” appeared at the White House press podium this week to emphasize, in Spanish, that the “border is not open.” It’s clear that, as we and others predicted, the crisis rhetoric has spooked the Biden team, and become somewhat of a self-reinforcing prophecy: the tentativeness of executive policymaking on the border, the remaining restrictions, and the general ambient of confusion feeds the crisis narrative. It has also re-emphasized that presidential administrations of every stripe have viewed the United States’ domestic and international legal requirements to offer access to protections as flexible at best, subject to political considerations.

So, what’s actually happening? Is there a real “crisis” at the border, or is this fear-mongering? This depends on how you define the word. In terms of the raw numbers of people arriving to seek protections, the assertion isn’t supported by the facts. Yes, there has been a spike in the number of unaccompanied child apprehensions in the last few weeks, but (as we get into in a little more detail below) these are still well below historic peaks. Other figures being thrown around to justify the surge posture are CBP “encounters,” a metric that essentially logs every time an agent detains someone crossing the border or encounters someone without entry documents at a port of entry. These numbers are meaningless without the context that almost all encounters with adults and families currently result in expulsions, and they often represent the same people trying again and again to enter the country to petition for asylum and being prevented from doing so.

The recriminations also uniformly treat the rising numbers of child apprehensions as a phenomenon set off by Biden’s more permissive border policies. This obscures the obvious fact that the current situation was set up by the previous administration, which created an entire ecosystem of asylum seekers-in-waiting through MPP, metering, the general application of Title 42, and other policies. Desperate migrants were waiting for a chance to pursue their right to an asylum claim, and as soon as the barriers were rightly or wrongly perceived to be eased, they were going to take the opportunity. 

It’s even possible that the pared-down version of Title 42 is contributing to the increasing numbers of unaccompanied minors, given that they’re typically the only people who can make it through. Under MPP, families were known to send their children into the United States alone to avoid the restrictions, and advocates have pointed to the same thing happening now. Insofar as there is a spike, it’s likely unavoidable, and will be eased once the ‘backlog’ of potential asylum seekers get their chance to present a claim.

There’s a much stronger case to be made that the crisis exists in the administration’s handling of unaccompanied minors so far. Recent reporting shows over 1,400 minors had been in CBP custody longer than the legal limit of 72 hours before they’re supposed to be transferred to the care of Health and Human Services, a staggering uptick from the nine children in this situation as of February 21. These facilities are barely fit to hold adults for a day or two, let alone children for days at a time, and this situation is unacceptable, particularly given that this was an eminently predictable situation. As we recently covered, the administration is moving to open unlicensed “influx” shelters that, while better than Border Patrol cells, have historically had serious safety concerns and lax oversight. Insofar as there is a longer-term plan to avoid the use of CBP and influx shelter custody, its contours aren’t clear.

How we got here

President Trump declared a national state of emergency along the U.S.-Mexico border in February 2019, amid a decrease in unauthorized border crossings. The emergency declaration wasn’t about an increase in migrants at the border—it was a way for Trump to legally justify shuffling money around to pay for construction of the border wall.

That said, Trump’s presidency was marked by a series of “crises” at the border, many of which were created by the administration in the first place. 

Early on in Trump’s administration, immigration officers stationed at ports of entry along the U.S.-Mexico border started turning asylum seekers away, telling them to come back later because border processing stations were full. This practice, known as “metering,” created a backlog of migrants in Mexican border cities. A few of them were able to find shelter in churches, group shelters run by nonprofits, or—for those with the means—hotels or apartments. But hundreds lived in crowded, squalid tent cities near ports of entry

The Remain in Mexico policy, which began in January 2019, worsened the situation at the border. Officially known as the Migrant Protection Protocols, the program required some asylum seekers from Spanish-speaking countries to wait in Mexico while their cases were processed in the U.S. The combination of metering and MPP made it so some migrants waited months to even be processed at the border and let into the United States, only to be put in a program that required them to stay in Mexico for several more months, if not a full year. Like those waiting to be let into the U.S., migrants enrolled in MPP were forced to find shelter in unfamiliar cities. There were reports of gangs and drug cartels targeting migrants because they thought they had money; many migrants have been robbed, assaulted, kidnapped, extorted, or killed while waiting in Mexico.

Yet another crisis that resulted from the Trump administration’s own immigration policies was a slowdown in the processing of unaccompanied migrant children, which led to overcrowding at Border Patrol and Customs and Border Protection holding stations—places that weren’t designed for anyone, much less children, to be kept long-term. In the summer of 2019, investigators found that hundreds of children had been detained by Border Patrol in excess of the 72-hour maximum stipulated by the Flores settlement agreement, a consent decree that lays out guidelines for how the federal government must treat migrant children in its custody. That summer, Border Patrol detained roughly 2,000 kids a day, according to Vox.

Typically, children in Border Patrol custody are supposed to be transferred to shelters operated by the Office of Refugee Resettlement within 3 days. ORR is supposed to reunite children with their sponsors, who are typically parents or other relatives already living in the U.S. and are often undocumented themselves. (For a more in-depth look at this process, we recommend reading this recent edition of the newsletter.) But new requirements for sponsors implemented by the Trump administration complicated and extended the reunification process. One new policy, expanded fingerprinting, required all adult members of a prospective sponsor’s household to submit fingerprints and other biometric information to the government. Since many sponsors and their relatives are undocumented, this had a chilling effect—sponsors worried that ORR would share their information with ICE. That's exactly what happened under an information-sharing agreement between ORR and DHS, and at least 300 sponsors were arrested by ICE as a result.

It’s important to note that the notion of a crisis at the border does not begin or end with Trump. The Obama administration faced a border crisis of its own. Faced with an increase in migrant families and unaccompanied children arriving at the border, the administration expanded family detention, opened influx shelters for unaccompanied children, and turned military bases into temporary shelters. 

This “crisis” was largely the result of the changing nature of who migrates to the U.S. While children and families have sought asylum in the U.S. for decades, most unauthorized migrants at the southern border have typically been single adult men, often from Mexico. This is obviously an oversimplification, but by and large, the infrastructure at the border was built to address this specific type of migration, and to rapidly deport those migrants back to their home country. The families that arrived at the border in 2014 were asylum seekers—they were often fleeing violence or some kind of persecution in their countries, and as such, were entitled to asylum hearings. These hearings take longer to adjudicate than typical deportation proceedings. Additionally, since they were traveling with children, these families were subject to the Flores settlement agreement; in fact, a federal judge ruled that the Obama administration couldn’t indefinitely detain families with children, as Flores applied to them as well as to children who arrived at the border alone. 

If there’s anything these so-called border crises have in common, it’s the fact that migrants fleeing poor conditions in their countries of origin—whether it be civil war, persecution, gang violence, climate change, or poverty—aren’t deterred by politicians telling them not to come to the U.S. It’s clear that the U.S.’s immigration bureaucracy and detention infrastructure aren’t equipped to deal with a large degree of humanitarian migration—but this is a crisis of political will, not one attributable to a “surge” at the border.

What’s next?

At base, we have a mixture of policy and infrastructure problems. The policy problems have led to the rising numbers of minors presenting at the border and the many adults and families who are waiting in the wings for their chance to seek protections. The infrastructure problems have prevented the government from effectively dealing with the results. No one believes that the solutions are easy or straightforward, but there certainly are solutions.

For one, the justification for the holding of minors in CBP custody and the opening of influx shelters is that the state-licensed permanent stable of HHS-overseen child shelters is out of space, partly owing to capacity constraints as a result of the ongoing pandemic. This may well be true, but that doesn’t mean that the government has hit the upper limit of shelters available nationwide that can be used to house minors. As one child legal services provider recently told us, “Why can't we do for these children the same as we would do for any U.S. citizen child? There's no way that child welfare services would agree that [influx] facilities would meet standards for foster care for a U.S. citizen child.” HHS could add licensed shelters to its permanent roster of facilities for unaccompanied minors, which would not only be safer but cheaper.

As mentioned above, one of the bigger obstacles for quickly uniting children with sponsors are the restrictions and disincentives for sponsors to come forward in the first place. The administration could make an investment into making the process to locate and vet potential sponsors quicker and more efficient, and work on messaging to these sponsors that it’s safe to come forward and they won’t be subject to any type of enforcement. A variety of other methodologies could speed the process to release children from custody.

Then, there’s the question of the adults and families that are still waiting. Whenever Title 42 is finally repealed, there will be thousands of people ready to present at ports of entry or cross the border almost immediately. The administration can start putting plans in place now to accommodate these people and safely facilitate their entry. Making the former ICE family residential centers into way-stations of sorts to provide testing and orientation is a good start, but there needs to be more aggressive and preemptive preparation. Whenever the order is repealed, there will no doubt be a renewed furor to call the impact a “border crisis,” and it will be up to the administration to keep a cool head and move ahead with its plans, and not get sucked into another bad-faith media circus.

Under the Radar

Biden administration ends public charge expansion

The Biden administration is ending a Trump-era rule that made it harder for immigrants on public assistance to obtain green cards. Trump expanded the longstanding “public charge” rule in 2019, amending it so anyone who has used benefits such as Medicaid or federal housing assistance, or who immigration officials determined may use such benefits in the future, could be denied permanent residency. The expanded public charge rule has been tied up in litigation for years, and was taken up by the Supreme Court in February. SCOTUS dismissed the public charge case this week after the Biden administration said was “neither in the public interest nor an efficient use of limited government resources” to continue defending the rule in court. The Department of Homeland Security has since begun the process of removing the rule from the Federal Register.

Public charge is a longstanding concept in immigration policy—the federal government first barred immigrants who are “likely to become a public charge” through the Immigration Act of 1882. In 1999, public charge was amended through an INS guidance identifying cash assistance benefits as indicators that someone could become a public charge. The Trump administration attempted to drastically expand public charge, adding non-cash benefits such as SNAP and Medicaid to the equation. Immigration officers were also instructed to determine whether people were “likely” to rely on such benefits in the future and could deny them permanent residency on those grounds.

Next Destination

Central American Minors Program to be reinstated

The State Department is bringing back a program that lets some Central American children with relatives in the U.S. apply for immigration status from their home countries. The Central American Minors Program was first implemented by the Obama administration in 2014 and was ended by the Trump administration in 2017. Under this program, children from El Salvador, Guatemala, and Honduras whose parents or guardians were legally present in the U.S. could apply for status from their home countries—the goal was to prevent children from arriving at the border unaccompanied and unauthorized, which would trigger deportation proceedings.

The program was limited in scope: it didn’t, of course, apply to children whose parents or guardians were present in the U.S. but didn’t have legal status. In this sense, its potential is limited, and the Biden administration is working to send the message that unauthorized migrants aren’t welcome in the U.S. “Neither this announcement nor any of the other measures suggests that anyone, especially children and families with young children, should make the dangerous trip to try and enter the U.S. in an irregular fashion,” Roberta Jacobson, a special assistant to the president who works on border issues, said at a Wednesday press conference.

Per the State Department, the program will resume in two stages. Immigration officials will first process applications that were closed when the Trump administration ended the program in 2017, which will begin around March 15. New applications will be accepted during the second stage.