In March, the number of Unaccompanied Alien Children apprehended at the border reached a new record: 18,663. (U.S. Border Patrol Apprehensions by Sector, FY2021) This new record marks a 62 percent increase from the prior record set in during the Trump Administration (11,475 in May 2019) and a 76 percent increase of the highest monthly total under the Obama Administration (10,620 in June 2014). (U.S. Border Patrol, Total Unaccompanied Alien Children Apprehensions by Month 2010-2019)
The current crisis on the Southern border has been building for years, fueled by multiple factors, including decades-long litigation over the detention of minors and family units; the large backlog in the immigration courts; insufficient number of detentions beds for families; broken asylum laws that encourage gaming of the system; reduced immigration enforcement; and promises of lenient treatment. With respect to Unaccompanied Alien Children, the crisis has also been fueled by a 2008 law that significantly impedes the ability of Customs and Border Protection to maintain control over our border and creates incentives to come to the U.S. illegally.
In 2008, just two weeks before Christmas, the Senate passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) by unanimous consent and sent it to President Bush for his signature. Senator Biden was the law’s chief Senate sponsor. (H.R. 7311; S. 3061; Congressional Record S10886; Public Law 110-457)
The TVPRA of 2008 made numerous changes to the Trafficking Victims Protection Act of 2000, including the creation of a formal office within the State Department to monitor and combat human trafficking (Sec.102), stiffened penalties for trafficking crimes (Sec. 221-224), restrictions on the export of arms to countries who recruit or use child soldiers (Sec. 404), expansion of eligibility for the T visa program for victims of human trafficking (Sec. 201), and the expansion of eligibility for the Special Immigrant Juvenile visa program (Sec. 235(d)).
And, although it received little attention, Section 235 of the TVPRA of 2008 quietly codified a catch-and-release policy for most unaccompanied children crossing the border illegally. (8 U.S.C. 1232)
Section 235 was based on legislation introduced by Senator Feinstein in 2000 called the Unaccompanied Alien Child Protection Act of 2000 (S.3117), which in turn was based on the 1997 Flores Settlement Agreement. Senator Feinstein said the purpose of her legislation was “to ensure that unaccompanied children receive humane and appropriate treatment while in the custody of the U.S. Government.” (Congressional Record S10886)
In reality, however, Section 235 did little to improve the conditions of unaccompanied children while in the custody of the government. It did, however, ensure that most unaccompanied children would be released into the U.S. and reunited with a parent or family member.
The change instituted by the Section 235 is complex, but it starts with a detailed and rigid process that border officials must follow when they apprehend an unaccompanied child.
First, border officials (Customs and Border Protection, or CBP) must assess whether the child meets the definition of an Unaccompanied Alien Child (UAC). By statute, a UAC is a child who:
- Has no lawful immigration status;
- Is under 18 years old; and
- Has no parent or legal guardian in the U.S., or has no parent or legal guardian in the United States available to take custody of and provide care for the child. (TVPRA Sec. 235(g); 6 USC 279(g))
After determining that the child is a UAC, CBP must screen the child to ensure that s/he is neither a victim of trafficking nor a potential asylum-seeker. Specifically, CBP must determine that:
- The child is not a trafficking victim, nor is at risk of being trafficked upon return to his/her home country;
- The child is not an asylum-seeker; and
- The child is able to make an independent decision to abandon his/her attempt to enter the U.S. and return home through voluntary return (importantly, not a formal removal proceeding).
Sec. 235 mandates that CBP make this determination, including whether the child falls under the definition of UAC, within 48 hours. (TVPRA Sec. 253(a)(4))
If CBP identifies a child as a potential trafficking victim or asylum-seeker, Section 235 requires that the child is placed into formal removal proceedings, transferred to the Department of Health and Human Services (HHS) and released into the U.S., typically to a parent or guardian.
However, Section 235 does not stop there. Section 235 requires CBP to place all unaccompanied children apprehended at the border, into the same process—except for Mexican and Canadian unaccompanied minors, who, so long as they are not trafficking victims or asylum-seekers, may be quickly repatriated back to government officials or social welfare services within their respective countries.
Put another way, if CBP screens an unaccompanied alien child and determines that the child is from any country in the world other than Canada or Mexico, CBP must place the UAC in formal removal proceedings under INA 240 and transfer custody of the child to HHS. (Sec. 235(b)(1)) And, if CBP cannot complete the required screening within 48 hours, Section 235 again requires CBP to place the child into formal removal proceedings. CBP must notify HHS that it has a UAC in custody within 48 hours of determining that the child is a UAC and transfer that child to HHS within 72 hours (Sec. 235(b)(2) and (b)(3)).
Once in HHS custody, the agency quickly works to release the child. Section 235 requires HHS to promptly place the child “in the least restrictive setting that is in the best interest of the child.” (Sec. 235(c)(2)). In placing the child, HHS may consider danger to self, danger to the community, and risk of flight. Importantly, however, Sec.235 prohibits HHS from placing a child into a secure facility “absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.” (Id.) If a child is placed in a secure facility, the placement shall be reviewed on a monthly basis to determine if such placement remains warranted.
HHS releases the majority of UACs in its care to individual sponsors, most of whom are parents or close relatives, within 60 days. (Congressional Research Service, Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border, May, 19, 2020) For example, in FY 2018, HHS officials testified that the agency released 90 percent of UACs to individual sponsors, 41 percent of whom were parents and 47 percent of whom were close relatives. (Testimony of Steven Wagner, Acting Assistant Secretary for the Administration for Children and Families (HHS), April 26, 2018)
Once Congress had passed the TVPRA, it did not take long to see that it was unworkable. This was especially true for CBP, whose agents and officers were the first to encounter migrants. As mentioned above, Section 235 requires CBP to determine whether a child is a UAC within 48 hours. However, CBP rarely has any documentation to establish the age of an alien and must therefore, unless it is obviously wrong, rely on simply what the alien tells them. This has led to abuse. Aliens over 18, often on the prompting of the cartels that smuggle them, will frequently claim to be under 18, knowing that they will be let into the U.S., transferred to HHS custody and released.
Another problem is that CBP often has little information to determine whether an unaccompanied child has a parent or guardian in the U.S. If the child has a parent or guardian in the U.S. (which is often the case) the child is not a UAC and is not subject to UAC processing. However, children often report they have no parents in the U.S., and because CBP is unable to ascertain otherwise, CBP has no choice but to classify an apprehended child as a UAC.
These pitfalls, combined with a massive backlog in the immigration courts and promises of lenient treatment (such as DACA and narrow enforcement priorities) quickly created incentives to come to the U.S. illegally. By FY 2014, the number of UACs apprehended was more than eight times the number apprehended the year before the TVPRA was enacted (68,631in FY 2014 compared to 8,041 in FY 2008). (See CBP UAC Apprehensions FY2008 – FY2012; CBP UAC Apprehensions FY2010 – FY 2019)
Moreover, the composition of UACs apprehended had changed dramatically, from the large majority being Mexican to the large majority being Central Americans. This table from the Congressional Research Service demonstrates the shift.
Congressional Research Service, Unaccompanied Alien Children, an Overview, Oct. 9, 2019. See also See CBP UAC Apprehensions FY2008 – FY2012; CBP UAC Apprehensions FY2010 – FY 2019; CBP Enforcement Encounters FY2020)
This dramatic growth in UAC apprehensions only exposed more weaknesses in the law. Section 235 had completely stripped CBP of any discretionary authority to quickly remove the majority of UACs through voluntary return or expedited removal. (Congressional Research Service, July 20, 2014) With no other choice but to keep UACs in the U.S. for formal removal proceedings, the numbers of UACs in custody at border patrol facilities quickly grew to unmanageable and unsafe levels. The problem was only compounded by lack of bed space at HHS, or the lack of bed space in appropriate facilities, which prevented border officials from transferring UACs to HHS custody within 72 hours as required by Section 235.
During the 2014 crisis, leaders on both sides of the aisle recognized that the TVPRA had created a problem. Indeed, President Obama complained that Sec. 235 limited his options as he attempted to deal with the crisis and sent a letter to Congressional leaders urging them to pass legislation that would give DHS discretion quickly deport UACs from non-contiguous countries. ((New York Times, July 7, 2014; ObamaWhiteHouse.archives.gov, June, 30, 2014); USA Today, June 30, 2014; USA Today, July 2, 2014) Similarly, Homeland Security Secretary Jeh Johnson testified before Congress that amending the TVPRA to provide DHS with discretion to treat UACs from non-contiguous countries the same as UACs from contiguous countries would help stem the crisis. (Senate Appropriations Hearing, p.30-31, 52 July 10, 2014)
Members of Congress made several attempts to amend the TVPRA. In the summer of 2014, over forty Republicans co-sponsored legislation introduced by Reps. Jason Chaffetz (R-Utah) and Bob Goodlatte (R-Virginia) which would have narrowed the definition of UACs and made all UACs eligible for expedited removal. (H.R. 5137) Senator John Cornyn (R-Texas) and Rep. Henry Cuellar (D-Texas) also introduced legislation that would have eliminated the distinction between contiguous and non-contiguous countries and created a new removal process for UACs. (S.2611) In early 2015, forty House Republicans co-sponsored legislation introduced by Rep. John Carter (R-Texas) and Robert Aderholt (R-Alabama) that would have also eliminated the difference in processing between children from contiguous and non-contiguous countries (H.R. 1149)
Immigrant advocacy groups strongly opposed any changes to the TVPRA, arguing it would roll-back protections for children. The American Immigration Lawyers Association (AILA), for example, wrote in one of its issue briefs: “AILA is concerned that the administration may try to bypass the legal standards governing the care and protection of unaccompanied children developed over the past two decades, or seek congressional authority to do so. The current legal standards protecting unaccompanied children are among the most carefully developed in the world, and should not be undermined when confronted with a temporary humanitarian crisis.” (AILA, Recommendations on Legal Standards and Protections for Unaccompanied Children, July 8, 2014)(emphasis added)
AILA opposed any narrowing of the TVPRA. It opposed the use of voluntary return for all UACs and, in fact, advocated that Congress should require all UACs – including those from Mexico and Canada – be placed into formal removal proceedings and released into the U.S. To stem the crisis, AILA argued that the Government should simply hire more immigration judges, hire more asylum officers, but “should not expand the use of detention for families as a means to address the crisis or to deter future arrivals.” (Id.) It also urged that UACs be cared for in the least restrictive setting and have access to counsel, pursuant to the TVPRA. In short, AILA, and many of the other immigrant advocacy groups, advocated for the more of the same. With critics to his left arguing against change, President Obama did not formally endorse any legislation to amend the TVPRA.
The House of Representatives, however, took action. In August 2014, as part of the Supplemental Appropriations Act FY2014 (H.R. 5230), the House adopted changes to the TVPRA of 2008 that eliminated the contiguous/non-contiguous distinction in, allowing CBP to voluntarily return all UACs who were not victims of trafficking or asylum-seekers. H.R. 5230 also simplified the original screening by CBP and required removal proceedings to be held before an immigration judge within 14 days. (Id.)
Meanwhile, the Senate moved forward with its own legislation, S. 2648. S.2648 contained no changes to the TVPRA and appropriated $2.7 billion in border-related funds, $1 billion less the amount President Obama requested. (Congressional Record, S.5198, July 31, 2014) The Obama Administration nevertheless supported passage of S.2648, saying it was preferable to “holding necessary resources hostage to partisan provisions.” (OMB, Statement of Administration Policy, July 28, 2014)
During the floor debate, Minority Leader Mitch McConnell (R-Kentucky) lambasted the President for backing away from his own proposal to amend the TVPRA. “The President initially laid out reforms that, while modest, represented a step in the right direction. But evidently the politicos who increasingly have the President’s ear these days couldn’t go along with that, so the President stopped defending his own policy reforms. Instead, he demanded a blank check that would literally preserve the status quo, a blank check he knew wouldn’t fix the problem, a blank check he knew couldn’t pass Congress, and a blank check he knew members of his own party in Congress didn’t even support.” (Congressional Record, S5160, July 31, 2014)
In contrast, Senate Appropriations Chairwoman Barbara Mikulski, author of S. 2648, suggested the UAC problem was not severe and could be adequately addressed in her one-time emergency supplemental appropriations bill. “There was talk on the floor that made it sound as if we were under siege rather than facing a surge. I think there is a big difference between feeling as if we are under siege and facing a surge. As of this minute, we are talking about 60,000 children. That is a lot of children, but if you went to Baltimore to the Ravens stadium, the Ravens stadium holds 60,000 people. We are not talking 600,000 or 6 million children; we are talking about 60,000 children. Maybe it will swell to 90,000 children. All 90,000 children could still fit in the new Dallas stadium. We are talking about a number so small that it could fit into an American stadium. We are a country with 300 million people. We can certainly deal with 60,000 children who are fleeing traffickers, drugs, and sexual slavery.” (Congressional Record, S5168, July 31, 2021)
Senator Cornyn (R-Texas), however, stressed the problem was compounding over time and that it would not abate until the TVPRA of 2008 was amended. Senator Mikulski’s approach, he said, “does not solve the underlying problem, which is a loophole in a 2008 law, which is now being exploited as part of the business model of the cartels that smuggle children and other immigrants illegally from Central America through Mexico into South Texas.”
Cornyn continued, “[T]he numbers have nearly doubled over the last couple of years, and there are projections that there will be not just the 57,000 unaccompanied children who have been detained so far this year but that the number could grow as high as 90,000 by the end of this year and 145,000 next year. We are going to be in deep trouble, not to mention the crisis for these children. Our capacity to deal with them at the border and in local communities there is overtaxed, and there is the fact that the Border Patrol is diverted from interdicting illegal drug traffic and other necessary activities because they are taking care of these children, who deserve to be taken care of, at least while they are in our protective custody. So this is not a solution to the problem.” (Congressional Record, S.5198-5199, July 31, 2014)
At the end of debate, Senate Republicans, arguing that the bill contained no policy changes and that they were not allowed to offer amendments, killed S. 2648 though a budget point of order. (Congressional Record, S.5205; July 31, 2014; Roll Call Vote 252)
As Senator Cornyn predicted, the number of alien children flooding the Southern border only increased. After UAC apprehensions began surging in 2018 and 2019, DHS leaders again called on Congress to amend the Section 235. (See, e.g., ICE Director Matt Albence, Testimony before the U.S. Senate, Sept. 18, 2018) But once again, immigrant advocates opposed any change to the TVPRA. In May 2019, at the height of the next UAC surge, seventy-six immigrant advocacy organizations sent a joint letter to Congress, urging all members not to expand the detention of families by overturning Flores and not to modify TVPRA. (NILC, Letter to Congress: Oppose Legislation Gutting Protections for Children, May 6, 2019)
Congress has yet to fix the TVPRA of 2008 and end this catch-and-release policy. Tackling this and the related Flores Settlement Agreement will be critical steps in addressing this immigration crisis.