The Government’s Statement on the Border Issue

This morning, Homeland Security Secretary Alejandro Mayorkas released this statement about the situation at the southwest border. I tend to think it’s an improvement over the bullshit statements the government issued during the past four years:

There is understandably a great deal of attention currently focused on the southwest border.  I want to share the facts, the work that we in the Department of Homeland Security (DHS) and across the government are doing, and our plan of action. . . .

Our goal is a safe, legal, and orderly immigration system that is based on our bedrock priorities: to keep our borders secure, address the plight of children as the law requires, and enable families to be together. As noted by the President in his Executive Order, “securing our borders does not require us to ignore the humanity of those who seek to cross them.” We are both a nation of laws and a nation of immigrants.  That is one of our proudest traditions.

The Facts

We are on pace to encounter more individuals on the southwest border than we have in the last 20 years.  We are expelling most single adults and families.  We are not expelling unaccompanied children.  We are securing our border, executing the Centers for Disease Control and Prevention’s (CDC) public health authority to safeguard the American public and the migrants themselves, and protecting the children.  We have more work to do.

This is not new. We have experienced migration surges before – in 2019, 2014, and before then as well. Since April 2020, the number of encounters at the southwest border has been steadily increasing. Border Patrol Agents are working around the clock to process the flow at the border . . . To understand the situation, it is important to identify who is arriving at our southwest border and how we are following the law to manage different types of border encounters.

Single Adults

The majority of those apprehended at the southwest border are single adults who are currently being expelled under the CDC’s authority to manage the public health crisis of the COVID-19 pandemic.  Pursuant to that authority under Title 42 of the United States Code, single adults from Mexico and the Northern Triangle countries of El Salvador, Guatemala, and Honduras are swiftly expelled to Mexico.  Single adults from other countries are expelled by plane to their countries of origin if Mexico does not accept them.  There are limited exceptions to our use of the CDC’s expulsion authority.  For example, we do not expel individuals with certain acute vulnerabilities. 

The expulsion of single adults does not pose an operational challenge for the Border Patrol because of the speed and minimal processing burden of their expulsion.

Families

Families apprehended at the southwest border are also currently being expelled under the CDC’s Title 42 authority.  Families from Mexico and the Northern Triangle countries are expelled to Mexico unless Mexico does not have the capacity to receive the families.  Families from countries other than Mexico or the Northern Triangle are expelled by plane to their countries of origin.  Exceptions can be made when a family member has an acute vulnerability.

Mexico’s limited capacity has strained our resources, including in the Rio Grande Valley area of Texas.  When Mexico’s capacity is reached, we process the families and place them in immigration proceedings here in the United States.  We have partnered with community-based organizations to test the family members and quarantine them as needed under COVID-19 protocols.  In some locations, the processing of individuals who are part of a family unit has strained our border resources. . . .

Unaccompanied Children

We are encountering many unaccompanied children at our southwest border every day.  A child who is under the age of 18 and not accompanied by their parent or legal guardian is considered under the law to be an unaccompanied child.  We are encountering six- and seven-year-old children, for example, arriving at our border without an adult.  They are vulnerable children and we have ended the prior administration’s practice of expelling them.

An unaccompanied child is brought to a Border Patrol facility and processed for transfer to the Department of Health and Human Services (HHS).  Customs and Border Protection is a pass-through and is required to transfer the child to HHS within 72 hours of apprehension.  HHS holds the child for testing and quarantine, and shelters the child until the child is placed with a sponsor here in the United States. In more than 80 percent of cases, the child has a family member in the United States. In more than 40 percent of cases, that family member is a parent or legal guardian. . . .

The children then go through immigration proceedings where they are able to present a claim for relief under the law.

The Border Patrol facilities have become crowded with children and the 72-hour timeframe for the transfer of children from the Border Patrol to HHS is not always met.  HHS has not had the capacity to intake the number of unaccompanied children we have been encountering. . . .

Why the Challenge is Especially Difficult Now

Poverty, high levels of violence, and corruption in Mexico and the Northern Triangle countries have propelled migration to our southwest border for years.  The adverse conditions have continued to deteriorate.  Two damaging hurricanes that hit Honduras and swept through the region made the living conditions there even worse, causing more children and families to flee. 

The COVID-19 pandemic has made the situation more complicated.  There are restrictions and protocols that need to be followed.  The physical distancing protocol, for example, imposes space and other limitations on our facilities and operations.

The prior administration completely dismantled the asylum system.  The system was gutted, facilities were closed, and they cruelly expelled young children into the hands of traffickers.  We have had to rebuild the entire system, including the policies and procedures required to administer the asylum laws that Congress passed long ago. 

The prior administration tore down the lawful pathways that had been developed for children to come to the United States in a safe, efficient, and orderly way.  It tore down, for example, the Central American Minors program that avoided the need for children to take the dangerous journey to our southwest border.

The previous administration also cut foreign aid funding to the Northern Triangle.  No longer did we [assist] efforts in El Salvador, Guatemala, and Honduras to tackle the root causes of people fleeing their homes.

And, there were no plans to protect our front-line personnel against the COVID-19 pandemic.  There was no appropriate planning for the pandemic at all.

As difficult as the border situation is now, we are addressing it.  We have acted and we have made progress.  We have no illusions about how hard it is, and we know it will take time. . . .

Actions We Have Taken

In less than two months, Customs and Border Protection stood-up an additional facility in Donna, Texas to process unaccompanied children and families.  We deployed additional personnel to provide oversight, care, and transportation assistance for unaccompanied minors pending transfer to HHS custody.

We are standing up additional facilities in Texas and Arizona to shelter unaccompanied children and families.  We are working with Mexico to increase its capacity to receive expelled families.  We partnered with community-based organizations to test and quarantine families that Mexico has not had the capacity to receive.  We have developed a framework for partnering with local mayors and public health officials to pay for 100% of the expense for testing, isolation, and quarantine for migrants.  ICE has also developed additional facilities to provide testing, local transportation, immigration document assistance, orientation, travel coordination in the interior, and mechanisms to support oversight of the migrant families who are not expelled.

Working with Mexico and international organizations, we built a system in which migrants who were forced to remain in Mexico and denied a chance to seek protection under the previous administration can now use a virtual platform – using their phones – to register.  They do not need to take the dangerous journey to the border.  The individuals are tested, processed, and transported to a port of entry safely and out of the hands of traffickers.  We succeeded in processing the individuals who were in the Matamoros camp in Mexico.  This is the roadmap going forward for a system that is safe, orderly, and fair.

To protect our own workforce, we launched Operation Vaccinate Our Workforce (VOW) in late January.   At the beginning of this administration, less than 2 percent of our frontline personnel were vaccinated.  Now more than 25 percent of our frontline personnel have been vaccinated.

We directed the Federal Emergency Management Agency (FEMA) to assist HHS in developing the capacity to meet the surge of unaccompanied children.  FEMA already established one new facility for HHS to shelter 700 children.  They have identified and are currently adding additional facilities.  We are working with HHS to more efficiently identify and screen sponsors for children.  In two days, we recruited more than 560 DHS volunteers to support HHS in our collective efforts to address the needs of the unaccompanied children.

We are restarting and expanding the Central American Minors program.  It creates a lawful pathway for children to come to the United States without having to take the dangerous journey. Under this expansion, children will be processed in their home countries and brought to the United States in a safe and orderly way.

In addition, DHS and HHS terminated a 2018 agreement that had a chilling effect on potential sponsors – typically a parent or close relative – from coming forward to care for an unaccompanied child placed in an HHS shelter. In its place, DHS and HHS signed a new Memorandum of Agreement that promotes the safe and timely transfer of children. . . .

The Path Forward

We are creating joint processing centers so that children can be placed in HHS care immediately after Border Patrol encounters them.  We are also identifying and equipping additional facilities for HHS to shelter unaccompanied children until they are placed with family or sponsors.  These are short-term solutions to address the surge of unaccompanied children.

Longer term, we are working with Mexico and international organizations to expand our new virtual platform so that unaccompanied children can access it without having to take the dangerous journey to our border. . . .

We are developing additional legal and safe pathways for children and others to reach the United States.  While we are building a formal refugee program throughout the region, we are working with Mexico, the Northern Triangle countries, and international organizations to establish processing centers in those countries so that individuals can be screened through them and brought to the United States if they qualify for relief under our humanitarian laws and other authorities. 

For years, the asylum system has been badly in need of reengineering.  In addition to improving the process by which unaccompanied children are placed with family or sponsors, we will be issuing a new regulation shortly and taking other measures to implement the long-needed systemic reforms.  We will shorten from years to months the time it takes to adjudicate an asylum claim while ensuring procedural safeguards and enhancing access to counsel.

President Biden laid out a vision of a “multi-pronged approach toward managing migration throughout North and Central America that reflects the Nation’s highest values.” To that end, we are working with the Departments of Health and Human Services, Justice, and State in an all-of-government effort to not only address the current situation at our southwest border, but to institute longer-term solutions to irregular migration from countries in our hemisphere that are suffering worsening conditions. . . .

Conclusion

The situation we are currently facing at the southwest border is a difficult one.  We are tackling it.  We are keeping our borders secure, enforcing our laws, and staying true to our values and principles. . . .

I came to this country as an infant, brought by parents who understood the hope and promise of America.  Today, young children are arriving at our border with that same hope.  We can do this.

Border Crisis or Big Problem Being Addressed?

People in the media love a new “crisis”, even if the old crisis was worse. From Greg Sargent of The Washington Post:

Republicans are convinced that attacking President Biden’s border policies will win them the midterms. House Minority Leader Kevin McCarthy has gleefully labeled the situation there “Biden’s border crisis.”

In this, Republicans are benefiting from a media debate that has gone off the rails.
There’s a huge hole in this attack, but it’s rarely described clearly in news reports and commentary. You can read endless headlines warning of a “crisis.” But even if that’s so, a crisis relative to what, exactly?

What’s missing is a serious comparison with the pre-Biden status quo. It’s as if the current situation exists in a vacuum: Before there was no crisis, and now there’s a crisis.

That’s absurd. The situation under the former president was substantially worse from a humanitarian and a pragmatic governing perspective: worse for the migrants, worse for the rule of law and worse for our country.

It’s true that child and teenage migrants are overwhelming our facilities.

Because they can’t get released alone, they must be held at Border Patrol facilities for 72 hours before getting transferred to the Office of Refugee Resettlement, which places them with relatives or guardians. The ORR facilities are jammed, backlogging border facilities.

This is a terrible situation. But it’s happening in large part because Biden is undoing a policy that should be undone.

Due to covid-19, the previous administration turned away most asylum seekers — without hearings — under a legal provision allowing a temporary block on noncitizens from entering, in order to protect public health.

Biden is no longer applying this provision to unaccompanied children and teenagers (while keeping it for adults), helping fuel child backlogs. But that’s a move in the right direction, both from a humanitarian and rule-of-law perspective.

Coronavirus will be tamed before long, and we have a legal obligation to allow migrants to exercise their right to seek asylum. [The public health] provision is not for controlling migrant flows outside a genuine public health rationale. If anything, expelling adults abuses it.

So continuing to use this tool is not a tenable long-term solution to the humanitarian problem, and it’s not in keeping with the rule of law. That requires letting in the kids, and we will have to allow more adults to apply for asylum. The question is how we manage it.

Republicans claim we’re seeing a breakdown in enforcement, and that this, combined with Biden’s promise to reverse the former guy’s policies, is causing the migrant spikes.

Yes, we’re seeing a spike: There were over 100,000 detentions at the border in February.

But right now, the border is in large part closed: Many adult asylum seekers are getting turned away with zero due process. The decision to lift the public health restriction for children and teens [does not mean a law isn’t being enforced. It means] the administration is no longer incorrectly applying the law to children and teens . . .

On the second claim, these spikes in migrations occur for complex reasons rooted in Central American conditions. Indeed, . . . there was a huge spike in 2019, amid the former guy’s draconian policies.

Expectations of a policy reversal might play some role in spurring people to attempt to apply for asylum. But all this really means is that [the former guy] was denying them that legal right, and Biden [won’t].

[The former guy’s] “solutions” were designed to prevent people from applying for asylum at all. His “Remain in Mexico” policy — which forced thousands back into Mexico to await hearings — was the centerpiece of this.

But that was a humanitarian catastrophe. Many were exposed to violence and even kidnapping, or stranded in horrific refugee camp conditions for months.

“[That] created a much worse humanitarian and legal crisis than what we’re seeing now,” Dan Restrepo, a national security official under former president Barack Obama, told me. “It failed to meet our legal obligations and relegated tens of thousands to dangerous and inhumane conditions in Mexico.”

That was only a “solution” if you believe cruelty and fear should be used to deter people from applying for asylum. That’s the real Republican position: that those are legitimate tools to ensure that as few people apply and qualify for asylum as possible.

But continuing that approach would be worse than the present in humanitarian and rule-of-law terms: Conditions spurring migrations will continue, and it would renege on our obligations under U.S. and international law.

The question is whether Biden can make the asylum system function better.

Homeland Security Secretary Alejandro Mayorkas just released a new statement outlining what this should look like: investing in Central American countries and creating new pathways for people to apply from afar, so they don’t come to the border; speeding up processing, so asylum claimants aren’t left in the interior and kids get transferred to guardians faster; and increasing capacity and ensuring more humane treatment at [Refugee Resettlement] facilities in the interim. . . .

The real way to hold Biden accountable is to judge whether he meets those promises.
Yes, these problems are hard to solve. But that’s the point: What’s hard is actually trying to solve them. Calling this a “crisis” outside that context is absurd: It was a crisis before, too. What’s different is that Biden is attempting to tackle this crisis in a far better way than [his predecessor] did.