Blog No. 183. The Border Mess: Malice Met Incompetence, But What Now?

The problem of illegal border crossings, and in particular the challenges of dealing with children of illegal immigrants, are not unique to the Trump administration. Nor are they easily resolved. Indeed, such matters have plagued prior administrations, Democratic and Republican, for decades. Nevertheless, the Trump administration has managed to make matters far worse by bringing to bear its own distinctive blend of malice and incompetence, a toxic brew that has made it almost impossible to discuss or debate the issues calmly. At the same time, while Trump has attacked and disparaged Democrats, his critics from the left have sometimes responded with intemperate vituperation of their own. Nevertheless, while partisan attacks and counterattacks come all too easily, finding solutions is both more difficult and more important.

How Did We Get Here?

Malice. Donald Trump’s antipathy toward illegal immigrants crossing our Southern border was expressed in the notorious comments he made to initiate his presidential campaign; ever since then it has been reflected in assorted tweets, remarks and speeches. From referring to Mexicans as rapists and murderers, Trump has “progressed” to blaming illegal immigrants for a non-existent crime wave, and claiming that Democrats are the sponsors of a vicious Central American criminal gang, MS-13 . For example, in a June 19 tweet:

Democrats are the problem. They don’t care about crime and want illegal immigrants, no matter how bad they may be, to pour into and infest our Country, like MS-13. They can’t win on their terrible policies, so they view them as potential voters!

Trump’s reckless talk appears to come in part from his own personal prejudices and in part from a cynical calculation of what plays well with his base. In the hours before issuing the Executive Order ending (or appearing to end) the ill-conceived family separation policy, Trump was reported to have told aides that family separation was the best deterrent to illegal immigration and that “my people love it.” Political calculation is also evident in Trump’s urging that it is up to Congress to fix the problem yet insisting that any legislative “fix” be part of a bill that would meet his other immigration objectives of building the Trump Wall and reducing legal immigration.

Incompetence. Almost as soon as the policy of “zero-tolerance” and family separation was announced in April and began to be implemented, it was obvious that little forethought or planning had preceded it. The media gave Increasing attention to poignant pictures of children being separated from their parents. Had no one thought that might happen? (The impact of the pictures reminded some of us of the way film on the evening news had undermined support for the Vietnam War, and what the images of Katrina had done to the reputation of President George W. Bush.) Melania Trump made a minor contribution to the negative images and impression of incompetence when she made an undoubtedly well-intended trip to a shelter in Texas but inexplicably wore a coat with the conspicuous message, “I really don’t care. Do U?”

Apart from the dreadful “optics,” there were questions the administration could not answer fully or at all: Where and under what conditions were the children being housed? How was the administration keeping track of them? When and how would they be reunited with their parents? And, most fundamentally, how could the policy be defended under existing law and court orders? When the President relented with an Executive Order canceling the separation policy, but purporting to preserve what was left of zero-tolerance, i.e., criminal prosecution of all illegal immigrants, debate raged in the White House as to whether and how that could be done.

In his June 20 Executive Order, the President directed the Attorney General to seek a modification of the Flores Settlement, an agreement embodied in court orders that regulate the conditions under which immigrant children may be detained by the government. The Flores Settlement was reached in 1997, and it resolved litigation that had begun in 1985. But the resolution was far from final. In 2015 the plaintiffs returned to court claiming violations of the agreement, and the Obama administration responded by seeking to  limit application of the agreement on the grounds that conditions had changed. The government’s arguments were largely rejected by United States District  Judge Dolly Gee of District Court, and her ruling was affirmed by the Ninth Circuit Court of Appeals. One wonders whether anyone had studied that litigation history and thought about its implications before the adoption of the zero-tolerance policy.

The Executive Order itself was a slap-dash document reminiscent of the President’s initial travel ban. The Order’s vaguely worded direction to seek relief from requirements of the Flores Settlement had a certain plaintive quality to it, asking the court to modify the agreement “in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.” In a Trumpian attempt at blame-shifting, the Executive Order was titled “Affording Congress an Opportunity to Address Family Separation.” Yet only two days later Trump would call on Republicans to “stop wasting their time” on immigration until after the November election.

Where Do We Go From Here? The Issues Going Forward

Detention of Children: Practical and Legal Problems. After issuance of the Executive Order, several observers asserted that zero-tolerance could no longer be carried out. As Politico put it:

Trump’s decision to announce the end to family separation effectively delivered the death knell to zero tolerance simply because the facilities to place families in detention were already close to capacity.

Apart from that practical problem, there was the unresolved issue of modifying or complying with the Flores Settlement.

The Justice Department’s June 21 motion seeking relief from Judge Gee explained the government’s predicament thus:

When the U.S. Department of Homeland Security (“DHS”) apprehends a family with minor children illegally entering the United States outside a port of entry, it traditionally has three options to choose from: (1) keep the family together by placing the family members at an appropriate residential facility during the pendency of their immigration proceedings; (2) separate the family by detaining the parents and transferring the children to U.S. Health and Human Services (“HHS”) custody; or (3) provide the family with a Notice to Appear for removal proceedings, release the family members from custody into the interior of the United States, and accept the now-common reality that families frequently fail to appear at the required proceedings, thus remaining illegally in the United States.

According to the government’s motion, “Only the first option accomplishes the dual goals of enforcing federal law and keeping families together.” Yet it appears that the government may have been too quick to dismiss the third option. Curiously, the government did not provide the court with any data as to how often families fail to appear at required proceedings, but some published reports have indicated that as many as one-third may fail to appear. That is a substantial number, but the government failed to indicate what consideration, if any, had been given to methods of improving that record. There are, for example, numerous alternatives to detention that have been selectively deployed by the government with evident success and that might be used more widely: electronic ankle monitors, biometric voice-recognition software, unannounced home visits, telephone reporting and global positioning technologies to track people who have been released from detention while their cases are being heard.

At the same time, in urging support for the first option (“placing the family members at an appropriate residential facility during the pendency of their immigration proceedings”), the government was faced with at least  two obstacles in prior rulings of the Flores court: a limitation on the length of time children can be detained and the nature of the facility in which they are housed.

The media has widely reported that the 1997 Flores Settlement  expressly imposed a 20 day limit on the detention of children, but in fact it did not. Rather, that agreement required that children be placed with an authorized adult or in a non-secure licensed facility “as expeditiously as possible.” In the 2015 litigation, the government tentatively indicated that it would be able to effect releases within an average of 20 days, and Judge Gee then opined that, depending on circumstances, 20 days might be acceptable. The government’s current motion seeking relief from the Flores Settlement did not refer to a 20 day limitation and relied largely on affidavits submitted by the Obama administration in 2015, renewing arguments made and rejected at that time. The principal new information offered was that family apprehensions had increased from 39,838 in 2015 to a projected 88,670 in 2018. As to the nature of the detention facilities, the government sought permission to hold children indefinitely in Immigration and Customs Enforcement “family residential facilities” rather than in non-secure facilities licensed by the state as specified in the agreement.

There is little in the history of the past litigation to suggest that either the plaintiffs or the court will be sympathetic to the government’s request. At the same time, no one in the administration is prepared to say what will be done if the requested modification is denied.

Criminal Prosecutions. One of the twin pillars of zero-tolerance is the criminal prosecution of all illegal immigrants entering the country,,While referrals for prosecution of parents accompanied by children have apparently been suspended because of a lack of facilities, they could later be resumed and, in the meantime, prosecution of aliens without children continues. In either case, this pillar has received relatively little of the discussion and debate that it deserves.

The prosecution of illegal immigrants has burdened federal courts and created its own costs as reflected, for example, in the fact that military lawyers have been requisitioned from the Defense Department to help out. Moreover, the prosecutions appear to delay rather than  accelerate removals from the United States. Yet it is not clear what, if any, purpose is served by such prosecutions. The crime of illegal entry is a misdemeanor and the penalties imposed on those convicted are too minimal to serve as a deterrent. A typical prosecution, described in some detail by an article in the New York Times, seems clearly a pointless ritual. As summarized by the writer:

The migrants typically are sentenced to time served in jail, a few days, and are transferred to the custody of Immigration and Customs Enforcement, where they remain in detention until they are deported — unless they submit a claim for asylum and are deemed to have sufficient justification to proceed with a hearing. Repeat offenders are often sentenced to 30 to 75 days in jail.

Even 75 days in jail would hardly seem significant, as a deterrent or as a punishment in comparison with the dangers and hardships endured on the journey that brought the defendants to the courtroom. The only significant penalty  arises if incarceration in a federal jail, either before or after trial, results in the defendant being separated from his or her children, but even that separation would be relatively brief. In short, criminal prosecutions may, like the Trump Wall, be largely symbolic.

Due Process and Expedited Removal. A backlog of 700,000 cases is pending before immigration courts and this backlog has often resulted in considerable delays in holding hearings. Senator Cruz and other Republicans  sought to address this problem by proposing the hiring of additional immigration judges. There are presently 375 serving judges and Cruz’s proposal would double that number to 750. But Trump was having none of it. Our irrepressible Twittermeister tweeted on June 24:

We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.

He then expanded his thought the following day:

Hiring many thousands of judges, and going through a long and complicated legal process, is not the way to go – will always be (sic) dysfunctional. People must simply be stopped at the Border and told they cannot come into the U.S. illegally. Children brought back to their country…If this is done, illegal immigration will be stopped in it’s tracks – and at very little, by comparison, cost. This is the only real answer – and we must continue to BUILD THE WALL!

Someone on the White House staff might have taken the President to one side and advised him that (a) no one has proposed hiring thousands of immigration judges and (b) there is already in place a procedure of expedited removals which do not involve an appearances before an immigration judge.

Expedited removals are effected in the case of immigrants who are apprehended within two weeks of their arrival and within 100 miles of the Mexican or Canadian border.Another removal procedure which does not involve immigration judges is “reinstatement” which is used in the case of aliens who re-enter after a prior deportation. Expedited removals and reinstatements together accounted for 85% of all removals in 2015 and 2016. On Monday, Press Secretary, Sarah Huckabee Sanders, once again undertook the unenviable task of “clarifying” a Presidential tweet, explaining that all Trump really meant was that he  wanted “more expedited removals.” She did not attempt to explain how that might be accomplished.

One circumstance in which expedited removal is not available is when an immigrant has asserted a credible claim for asylum, and that is an area with its own thorny issues.

Asylum Issues. Under the existing statute, asylum is available for persons who are unable or unwilling to return to, their home country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” While “persecution” was initially understood to apply to action by a government or government controlled group, it was expanded during the Obama administration to include violence that a government is unwilling or unable to control and to recognize somewhat amorphous “social groups” as targets of persecution. In some cases, that expansion made it possible to grant asylum to some victims of domestic violence or gang violence.

On June 11,  however, Attorney General Sessions issued binding advice to immigration courts that was generally taken to mean that asylum would be virtually impossible to gain in such cases:

Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address. 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.

Sessions’s statement was assailed by a variety of advocates for immigration and womens’ rights. Nevertheless, its actual impact is difficult to measure, as even under the expansive definition of statutory terms, the great majority of asylum claims had been denied.

It seems unlikely that the Sessions ruling will be overturned by a court, but it is a policy to which Congress should give its attention. The plight of individual women and children in particular are heart-rending, but there may be practical limits to how far the United States can and should go in providing sanctuary. The moral and political questions are not easy and demand thoughtful consideration. Congress, however, appears to be moving toward going even further than Sessions in limiting asylum opportunities. While the asylum provisions in the “conservative” and “moderate” bills pending in the House have receive relatively little attention in the media,  they have been analyzed by the Migration Policy Institute. The Institute reports that, without benefit of a single hearing, provisions in both bills would “significantly narrow grounds to apply for asylum,”  and produce ” a sharp reduction in the number of people permitted to seek humanitarian protection in the United States.”

If the availability of asylum should be greatly diminished, there may be even more reason to ask  whether the United States can do anything to mitigate the conditions that spurred the influx of asylum seekers and others from Central American countries.

Aid to Central American Countries. The bulk of immigrants currently seeking to gain entry into the United States by asylum or otherwise have come from one of three Central American countries known as the “Northern Triangle”: Honduras, Guatemala and El Salvador. A recent article in the Washington Post. “Why do some families risk crossing the U.S. border? Because if they don’t, they’ll be killed,” provided vivid descriptions of the conditions in each  country that have spurred flight by people who fear for their lives.

What can the United States do? We have given aid to those countries in the past: between the fiscal years 2008 and 2017, the United States appropriated just over $3 billion through an aid package focused on security and the rule of law. Such aid should doubtless continue. As a New York Times editorial observed on Monday:

[In] 2016, Honduras and El Salvador ranked among the five nations with the highest rates of violent death. People are desperate to escape, no matter what they may face at the U.S. border. Helping these nations stabilize themselves is key to reducing the flow of asylum seekers. But Mr. Trump does not like complexity or long-term strategizing. He prefers casting blame and making threats. He has repeatedly vowed to cut off aid to El Salvador, Guatemala and Honduras unless they stem the flow of drugs and people into the United States. In the administration’s budget proposals, it has sought deep cuts in aid to these countries — something Congress has wisely ignored. Removing a financial lifeline from nations already in chaos is hardly a recipe for progress.

Still, past aid  appears to have had little effect and Congress should consider whether aid should be given in a different form or under different conditions, possibly  in much larger amounts. Some significant portion of the $25 Billion Trump has requested for the Trump Wall might well be better spent for this purpose.