Blog No. 284 The Border Mess: Is It a Crisis?

The media have routinely described the situation at our border with Mexico as a crisis. The most dramatic and poignant element of the crisis has been the influx of unaccompanied children, whose arrival has overwhelmed the capacity of border officials. Those children, however, are far from the whole story. Secretary of Homeland Security Alejandro Mayorkas has said “We are on pace to encounter more individuals on the southwest border than we have in the last 20 years.” Nevertheless, the Biden administration has steadfastly refused to accept the term crisis.

That semantic reluctance may not be sustainable. To be sure, the conditions at the border are not a national crisis in the same league with the pandemic, but they are a crisis for all who are involved, from the migrants themselves, to officials who are attempting to cope with the situation, and to citizens, principally in border states, who are directly affected. The issue also has broader implications. It will increasingly claim the attention of the media as it provokes criticism from both Republicans and Democratic progressives. Hence, the mess at the border may well become a political crisis. As a headline in the Hill put it “Border Crisis Threatens Biden’s Political Momentum.”

President Biden had said relatively little on the subject until Tuesday, when he disclosed at least some of his thinking in the course of an interview with ABC’s George Stephanopoulos. That portion of the interview began with Stephanopoulos setting the scene:

Let’s talk about the crisis at the border. Some heartbreaking scenes down there right now. And a lot of the migrants coming in saying they’re coming in because you promised to make things better. It seems to be getting worse by the day. Was it a mistake not to anticipate this surge?

Biden’s ensuing comments would raise as many questions as they answered.

Cause of the surge. Biden did not directly answer the question as to whether the current surge should have been anticipated. He did note, correctly, that there had been past surges as did Homeland Security Secretary Alejandro Mayorkas in a written statement on the same day. Mayorkas, however, also acknowledged that “We are on pace to encounter more individuals on the southwest border than we have in the last 20 years.” As to cause, there is little doubt that the current surge has been fueled in significant part by what the New York Times called Biden’s “running on pledges to swiftly reverse many of Mr. Trump’s most restrictive migration policies.” This will be a continuing point of attack by Republicans.

Expelling adults. Biden attempted to rebut claims that he is soft on illegal immigration by insisting that “the adults are being sent back.” That, however, was an overstatement. Secretary Mayorkas put it more accurately, writing that “most” single adults and families are being expelled. Moreover, as CNN pointed out, Mayorkas’s statement was “true in February if you lumped together single adults and people traveling as part of a family unit into one big statistical group. It was not true, though, for family migrants on their own.” Of the 19,246 family-unit members about 41% were expelled. Combining single adults with family members approximately 79% were expelled.

According to Secretary Mayorkas, the expulsions are being made pursuant to Title 42 of the U.S. Code, which authorizes the exclusion of migrants who risk bringing a communicable disease into the country. Title 42 expulsions have been authorized since March 2020 and the advent of Covid-19. Unaccompanied children have apparently been exempted from such expulsions, but it is otherwise not clear just what criteria are used in deciding who would be expelled and who would not. Title 42 expulsions have taken place along side and, to some extent, superseded the Mexican Protection Protocols or, as Trump styled it, the “Remain in Mexico” program.) Despite the ostensible basis in public health for Title 42 expulsions, they became a convenient device for keeping migrants out of the country and an ACLU lawsuit challenging the expulsions is currently pending. In any case, good faith expulsions on public health grounds is hardly a barometer of how vigorously one is responding to illegal migrant entries.

Placement of the children. Biden addressed the placement of unaccompanied children:

[W]hat do you do with an unaccompanied child that comes to the border? Do you repeat what Trump did? Take them from their mothers, move them away, hold them in cells, et cetera? We’re not doin’ that. So what we’re doin’ is we have brought in — brought in HHS and also brought in FEMA to provide for enough safe facilities for them to not — to get out of control of the Border Patrol, which was not designed to hold people for long periods of time, particularly children.

Get them out of those facilities. And most of them come with a phone number too — so what we’re doing is we’re putting together an entire organizational structure so that, within seven days, they’re gonna be able to get on the phone, contact that number, find out whether there is a mother or a father, whether it is safe, whether it is a secure circumstance to get the child to that adult.

Facilities supervised by HHS were not “brought in” by the Biden administration–they have long been a part of the system, and are required to provide well-regulated physical, social and educational services to their resident children. Transfer to such facilities is required to be made within 72 hours—a standard not currently being met because of a lack of capacity in existing HHS facilities. Pending transfer, children are held in jails or comparable facilities maintained by the Border Patrol. The media have been denied direct access to the Border Patrol facilities, but reports indicate that in many cases the conditions have been relatively primitive.

Biden projected that “We will have, I believe, by next month enough of those beds to take care of these children who have no place to go.” At the same time, he emphasized the alternative of placing the children with a family member or other sponsor. It is not clear how many children can be so placed, or how quickly, or how thoroughly sponsors are being vetted. Presumably, sponsors receive some vetting before the placement is made, but that does not assure satisfactory conditions. (For example, a 2016 Senate investigation found significant deficiencies in placement residences.)

Neither mode of placement is a real solution. In either case, the children will have no legal status and they may well disappear from their residential placements into the shadows before their applications for asylum are adjudicated. When their applications are heard, the likely results may be deportations. Despite such prospects, the process may be attractive enough to encourage throngs of additional migrants to try their luck.

It is possible that the immediate crisis of child placement can be resolved, or at least mitigated, in a relatively short period. Even if it is, however, the need for medium and long term solutions will remain both pressing and elusive.

Message to Migrants. The Biden administration claims that it has sent a message to prospective migrants “not to come now.” The President personally reiterated this in the interview: “I can say quite clearly don’t come over.” It is not at all clear, however, that this message is being heard, let alone taken seriously, by the intended recipients. Moreover, it is not clear exactly what the current criteria for granting or denying asylum are or what they are likely to be.

Applications for Asylum and Eligibility for Asylum. Biden spoke of the administration’s intention to establish a system by which applicants for asylum could apply for asylum from their own country. It remains to be seen how difficult it will be to set up such a system and how attractive it will be to applicants. If it is simply an option, and not mandatory, many may prefer to take their chances in the United States, particularly if they are allowed to remain at liberty while their application is pending.

During the interview, Biden did not touch on the sensitive but potentially crucial issue of what the current standards of eligibility for asylum are and what they should be. The subject was raised in Biden’s lengthy February 2 Executive Order calling for a review of policies and procedures applicable to North American migrants. One provision of that order directed the Secretary of Homeland Security to evaluate within 180 days “whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards.” The Trump administration drastically curtailed asylum for those fleeing domestic and gang violence. That policy was doubtless a major factor in the increase in the rate of asylum denials to a record high of 71.6 percent during the Trump administration, up from 54.6 percent during the last year of the Obama Administration. It is fair to say that granting asylum to victims of domestic or gang violence, as the Obama administration did, had expanded the concept of asylum as granting protection for those who were being persecuted on the basis of their race, religion, nationality, political opinion, or membership in a particular social group. It is not clear what criteria are currently being applied or will be adopted.

Aid to the Northern Triangle (El Salvador, Guatamala, and Honduras). Stephanopoulos asked Biden a pointed question, “How do you cut through the red tape and make sure those kids get to a contact as quickly as possible? Our reporters on the scene are saying they’re seeing total mayhem there right now.” Biden did not answer the question, but deflected it by stressing his effort during the Obama administration:

Well, what you get — what you have to do is you have to try to get control of the mess that was inherited. And the way to get control of the mess that was inherited — I mean, look, here’s what the plan is. You may remember when we had this unaccompanied children at the border when Barack was president, he called me back, I was in Turkey and said, “You gotta take care of this.”

And I was able to get a bipartisan bill passed for almost $800 billion to go to the root cause of why — why people are leaving. Why are they leaving El Salvador, Guatemala and Honduras? Because they’re in terrible circumstance, either because of natural disasters and hurricanes, gangs or violence.

They’re tryin’ to escape. And that’s why they’re coming. So what I did, I spent close to 100 hours with the leaders of those three countries and the U.N. making sure that we’re — for example, in one of the major cities down there, they said the crime rate’s terrible. That’s why people are leaving this particular city.

“But we have no street lighting.” And the government said, “Give us the money to put in –” I said, “I’m not gonna give you the money. But I’ll tell you what. Show me what you need. I’ll get contractors down there. We’ll put in the street lights for you,” because there’s a lotta corruption down there. And guess what? Violence came down in that city.

While attempting to improve conditions in the Northern Triangle countries makes considerable sense, that approach is distinctly more complicated—and costly—than Biden’s comment suggested. Biden did spearhead an effort in 2016 that resulted in a $750 million (not billion) aid program for Central America, the Alliance for Prosperity (A4P). However, the results of the A4P were uncertain at best. As summarized in a report from the Center for Strategic and International Studies :

[D]espite the Alliance for Prosperity’s holistic design, it is widely regarded as being unable to stem the flow of migration from the region to the United States and is considered by some human rights organizations to have contributed to insecurity in the Northern Triangle. Its impact is difficult to measure, however, since most assistance for its programs did not reach the region until 2017 and was curtailed by the Trump administration in early 2019.

In the broad immigration proposal Biden issued on Inauguration Day, he requested $4 billion for aid to the Northern Triangle. That request has been viewed warily on Capitol Hill by legislators familiar with past aid programs. The Biden administration has been working hard to persuade lawmakers that strict controls will be imposed to assure that funds are not invested in propping up corrupt leaders. As reported in the LA Times:

Roberta Jacobson, Biden’s senior official for southwest border affairs and an expert on immigration, said in an interview that the $4 billion will be subject to strict — but untested — conditions on recipients, based on measures of anti-corruption efforts and good governance.

The adjustments follow a push by some lawmakers to place limits on the U.S. aid and warnings from foreign policy experts concerned that in the rush to stem illegal immigration, President Biden would go down the same path he followed as vice president, when U.S. assistance, with few effective strings attached, ended up empowering corrupt regimes.

Senator Patrick Leahy was one of eight Democratic senators who late last month introduced legislation that would tie Biden’s hands in disbursing some aid. He told the LA Times,

We have a long history of sending aid to Central American governments that failed to produce lasting, positive results. If we are going to send more U.S. tax dollars to those governments, they need trustworthy leaders who want to help their people, rather than to stay in power and enrich themselves.

The prospects of Biden’s aid proposal are uncertain; what is certain is that, however well-intended and carefully administered, such aid is not likely be a solution to our problems at the southern border in the very near future.

Biden’s interview with Stephanopoulos was far from a model of clarity and coherence, but he will have an opportunity for a better performance at his long-awaited press conference on the 25^th of this month. It is an opportunity for which he must be thoroughly prepared in order to make the most of it. In addition, he should consider a visit to the border, although he has shown no inclination to make one, and perhaps there is no time before the 25^th. Still, as the Economist pointed out, such a trip would help Biden “to understand the scale and complexity of the challenge confronting him.” It would also help to reassure the public that he is serious and realistic in his approach.