It Has More to Do With Unprecedented Increases in Detention and Deportation of Children Seeking Safety
The Trump border wall policy was never a serious one and still isn’t. It was started as a “mnemonic device” created by political consultants for candidate Trump to talk tough on immigration. With the government shutdown in its third week, Trump continues to hold the American people, their government, and federal workers hostage for a border wall that experts agree harms border communities, the environment, wildlife, and is simply ineffective. Now, President Trump is asking Congress for even more problematic policy described in last night’s speech, a two-page letter to Congress sent on Friday and another on Sunday.
Don’t be fooled. The request to Congress has little to do with effective border security and a lot more to do with unprecedented increases in detention and deportation of children seeking safety. The following is a point-by-point explanation of each of the issues.
Flores Agreement – Critical standards that protect children from harm.
The President has asked Congress to end the Flores Agreement. For decades the Flores Agreement has improved the treatment of children by setting standards of care in detention consistent with basic child welfare principles and by requiring the release of children from detention “without unnecessary delay.” With mounting cases of abuse and death of children in federal custody, this is not the time to end standards that attempt to keep children safe.
In December alone, two children died in CBP custody. In March last year, a toddler died weeks after being released from complications of an illness contracted at an ICE family detention facility. Recently, the ACLU issued a report based upon 30,000 government documents obtained through the Freedom of Information Act (FOIA) that show “a pattern of intimidation, harassment, physical abuse, refusal of medical services, and improper deportation between 2009 and 2014” in Customs and Border Protection detention facilities. In July last year, more than 200 sworn statements from detained immigrants – mothers, fathers, children – were filed in federal court describing horrific conditions in immigration detention.
Trafficking Victims Protection Reauthorization Act (TVPRA) – Protecting children from human trafficking, torture, and persecution.
The President has asked Congress to amend the TVPRA to allow for expedited return of unaccompanied children to their home countries without adequate processes to ensure the protection of children from trafficking, torture, and persecution. As the Lutheran Immigration and Refugee Service (LIRS), Women’s Refugee Commission (WRC), and Kids in Need of Defense (KIND) stated in response to a similar proposal in 2017, limiting review processes for children at the border “would likely result in a high percentage of children who are traveling without a parent being returned to dangerous situations where they are being trafficked, persecuted, tortured, or killed.”
The largest number of unaccompanied children are from El Salvador, Guatemala, and Honduras – Northern Triangle countries — where conditions, as described by the Center for American Progress (CAP), can be particularly dangerous for children:
The three Northern Triangle countries are among the poorest in the Americas and the most violent in the world….Deeply dysfunctional judiciaries across the Northern Triangle also contribute to the region’s run-away levels of crime and violence, as well as its lack of economic development and competitiveness. Impunity is a fact of life in the region….
Immigration Court – Resources are important, but the Trump administration has been systematically assaulting the rule of law in immigration court.
Though the Trump administration has spent the last two years assaulting of the rule of law in the immigration court, the President is requesting money to hire more immigration judges. Funding for more immigration judges has traditionally faced little opposition and, as recognized in the Trump administration letter to the Senate on Sunday, that money is already in the FY 2019 Senate bill, so it is unclear why the President is asking for this now.
If the administration actually believes in a well-functioning, well-resourced immigration court, it should roll back actions by the former Attorney General who:
- Irrationally added 350,000 low priority cases to the already large backlog;
- Imposed case-completion quotas for judges with no regard to quality, fairness and due process;
- Banned the use of case management tools by judges to effectively address and reduce overwhelming workload;
- Undermined judicial independence by reviewing and single-handedly re-deciding cases he disagreed with on policy;
- Attempted to end the critical legal orientation program (LOP) that ensures basic due process, humanity, and transparency, and is cost-effective for the government; and,
- Strong-armed immigration judges and asylum adjudicators to deny most claims for asylum based upon domestic and gang violence without a case-by-case review of facts, as required by the law.
Border Patrol – This is not the time for more Border Patrol agents when CBP lacks basic structures of accountability, children are dying in CBP custody, CBP can’t hire currently authorized agents, and the number of people apprehended at the border are at historic lows.
The President has requested 7,500 more Border Patrol agents, but Customs and Border Protection (CBP) has not been able to keep up with currently authorized levels, CBP accountability structures are extremely weak, and there are multiple reports of harm and abuse by CBP. Furthermore, border apprehensions are much lower than they have been in decades.
CBP is the largest law enforcement agency in the country and one of the largest in the world with a budget of $14 billion and more than 40,000 agents carrying 100,000 authorized guns. Despite its size, its accountability structure is small and weak, and it is seriously lacking in funding, staff and authority.
A 2016 report by Homeland Security Advisory Council (HSAC) said, “an adequately staffed internal affairs component is an indispensable element for assuring integrity and ferreting out corruption within a law enforcement organization.” Calling CBP Internal Affairs (IA) “woefully understaffed” with only 200 officers, HSAC recommended that CBP IA almost triple its staff for a total of 550 investigators within three years in order to bring CBP up to comparable levels as the FBI and the New York City Police Department. But nine months after receiving the HSAC recommendation, CBP had only initiated plans to hire 57 investigators. In fiscal year 2017, CBP only sought 30 more investigators, 60 in fiscal year 2018, and in the budget request for fiscal year 2019, CBP only sought to “sustain” 308 criminal investigators.
With extremely weak accountability structures, it is no surprise that the media and non-profit organizations have revealed multiple incidents of excessive use of force, assault and child abuse by CBP. In May, the Guardian reported:
The US government has paid out more than $60m in legal settlements [between October 2005 to July 2017] where border agents were involved in deaths, driving injuries, alleged assaults and wrongful detention, an analysis of more than a decade of official data reveals.
After four years of requests and a lawsuit, the ACLU obtained documents showing an unchecked pattern and practice of abuse of migrant children by the Border Patrol. As ACLU explains, “complaints are routinely closed or deemed ‘unsubstantiated’ without any meaningful investigation.”
Without strong accountability structures, it is also not surprising that CBP has a track record of criminal misconduct. The General Accounting Office (GAO) found that CBP had opened and closed 20,333 misconduct cases in fiscal years 2014 through 2016. Of those cases, 9% were for criminal misconduct, 11% were detainee-related misconduct such as “physical or sexual abuse of detainees, use of force, or conditions of detention misconduct,” 17% for conflict of interest such as “misuse of position, association with known criminals or illegal aliens,” and 30% were for general misconduct such as “failure to follow procedures, rude conduct.”
ICE Detention Beds – The President’s request for more detention beds ignores serious concerns raised by the DHS Inspector General.
More detention beds would ignore the DHS Inspector General, who found that detainees “were housed incorrectly based on their criminal history,” and, “in violation of standards,” strip searched, denied available language services, deterred from filing grievances or did not receive resolution of grievances filed. The IG also reported improper segregation, as well as “potentially unsafe and unhealthy detention conditions.” Such reports continue; in September 2018, the Inspector General reported that “ICE’s inspections and monitoring of detention facilities do not lead to sustained compliance or systemic improvements,” indicating that ICE is not able to adequately inspect its own facilities through an independent contractor.
Rather than throwing tax payers’ dollars away on detaining families and individuals who do not pose a public safety threat at a cost of more than $2 billion per year, Alternatives to Detention (ATD) should be used. ATDs are not only significantly cheaper, ranging from $0.70 to $17 per day, but are more humane alternatives that keep families together as they are considered for asylum. ATDs are also effective at ensuring appearance at immigration proceedings. Funding the root causes of migration by providing international aid to improve economic and security conditions in Central America would also be a more constructive use of taxpayers’ dollars.
ICE Agents – With no rational enforcement priorities that adhere to basic principles of justice and decency, the President is in no position to request more ICE agents.
The Homeland Security Act of 2002 requires the Secretary of Homeland Security to establish “national immigration enforcement…priorities,” but Trump administration policies upend this requirement by making everyone a priority and, therefore, no one is a priority. The result is indiscriminate deportations with no regard for common sense. As CNN stated, “A businessman and father from Ohio. An Arizona mother. The Indiana husband of a Trump supporter. They were unassuming members of their community, parents of US citizens and undocumented. And they were deported by the Trump administration.”
In addition, Trump’s ICE has increased enforcement in courthouses despite critical opposition from multiple judges and prosecutors explaining that such enforcement obstructs justice and efforts to ensure public safety.
Furthermore, reports have emerged that ICE has been targeting for deportation victims of crime who have applied for U visa protection. Victims voluntarily provide their information to the U.S. government in an effort to protect themselves from their perpetrators. Now that information is being used by ICE to deport them.
Humanitarian Issues – The Trump administration should release children in federal custody rather than ask for more funding to continue holding unprecedented numbers of children.
Suggesting concern over the well-being of children, the President now claims he needs more money to properly care for children in federal custody. If the President is indeed concerned about children, he should start by ordering his administration to fully reverse policy implemented last year that has led to unprecedented numbers of children in custody for longer periods of time, thereby exposing them to serious harm, some of which was the subject of a critical report by the Inspector General. In doing so, many more children would be out of federal custody, resulting in cost savings that could be used to better care for children who cannot be released.
Furthermore, the President should cease efforts to end the Flores Agreement which would inevitably result in even more children in custody for even longer periods of time.
Counter-narcotics/weapons Technology – A red herring.
The Congress has long supported non-intrusive inspection (NII) technology to ensure efficacious detection and prevention of threats at our border while facilitating legitimate international travel and commerce. In fact, while President Trump requested just $44.2 million for funding for NII in his FY2019 request, Congress has funded NII beyond the President’s request, and the Senate passed a funding bill that would more than triple the President’s initial funding request for NII, providing funding for recapitalization and acquisition of NII. Funding effective border security programs such as NII, however, should not be requested in addition to an unnecessary and ineffective border wall, but rather, as a replacement for such funding.
Reviving the Central American Minors (CAM) Program – Contrary to Trump administration claims, CAM may be revived without legislation.
In its request to Congress, the Trump administration incorrectly claims it needs legislation to fulfill Democratic requests for in-country refugee processing in Central America. But no legislation is required because the program was created by policy in 2014 and was in effect until the Trump administration ended it last year.
CAM was intended to “to provide a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to the United States [from El Salvador, Guatemala, and Honduras],” precisely what children are doing today. Furthermore, efforts to work with the UNHCR (the UN High Commission for Refugees) begun in 2016 to set up refugee reception and processing centers in the region under traditional refugee authorities have dried up under Trump, with just 525 refugees resettled in the U.S. from all of Latin America in fiscal year 2018.
The Smart, Effective, Cost-Efficient, and Humane Alternative
There is a better way. An intelligent response includes smart and humane measures that will result in a more orderly process:
- A major infusion of resources to swiftly hear and review many more asylum claims at border checkpoints, as opposed to the unprecedented “metering” of asylum applicants that allows for a limited number of asylum requests per day.
- Parole into the U.S. and monitoring with effective alternatives to detention programs for those with credible fears of persecution.
- Increased immigration judges with clearly protected independence from the Attorney General to hear asylum claims within a reasonable period of time and within a fair asylum determination process that protects those needing it while ensuring the integrity of our immigration system.
- The U.S. working together with humanitarian aid organizations to immediately address the humanitarian issues at the border.
- A long-term approach to address the root causes of migration by supporting public safety and sustainable economic development efforts by governments and NGOs in Honduras, El Salvador and Guatemala.
- The U.S., working with UNHCR, to develop a regional refugee response that includes refugee resettlement to the U.S., Canada, Costa Rica, and other Latin American nations.