How to Solve the Border Crisis?

A Center for Immigration Studies (CIS) panel last week identified the problems of America’s border crisis and its solutions.

The event, which took place in Washington D.C., included former Immigration and Customs Enforcement director Tom Homan, Jackson County, Texas Sheriff A.J. Louderback, and CIS fellow Andrew Arthur. CIS executive director Mark Krikorian was moderator.

The panelists said a new border problem is the large number of families illegally coming into the U.S.

“A big part of the reason why we’re seeing such a problem at these Border Patrol stations is the demographics has changed. About 70 percent of all the people who are coming into the United States today are family units. Another 10 percent are unaccompanied alien children,” Mr. Arthur explained.

Sheriff Louderback said “many of the kids are being caught over and over again,” adding that “over 30 percent” are “rented” from human smugglers.

Andrew Arthur explained:

[T]he crisis at the border is significantly worse by a factor of God-knows-what than it was 19 years ago. Most of the aliens who were apprehended entering the United States illegally up until approximately 2014 were single adult males. They were generally from Mexico and they were usually coming to the United States to work. They attempted to evade apprehension, but Border Patrol generally had the resources to arrest the vast majority of them.

Mr. Arthur also noted that there is a larger absolute number of immigrants trying to enter illegally than ever before. The were more apprehensions 19 years ago, but that was due to repeat offenders being caught repeatedly.

The biggest beneficiaries of this crisis are the cartels. “Nothing happens on that border without the blessing and paying off of the drug cartels that control that area,” Mr. Homan said. “So what’s happening right now with what’s going on the Southwest border, this humanitarian issue, is making these cartels very, very rich. We’re bankrolling the very same cartels that smuggle drugs — smuggle drugs, weapons, the same cartels that have murdered Border Patrol agents in the past.”

The panel agreed that Border Patrol cannot handle the flood. “We’ve been very clear these [detention] facilities weren’t built for families,” Mr. Homan said. “And it’s tough when you’ve got a facility that holds 100 adults, now you’ve got 500 family units.”

The panelists blamed Congress. “We have a situation in America where you [Congress] won’t fund it, and then you complain loudly that they’re not being taken care of, even though CBP [Customs and Border Protection] is finding a way. And this is money out of those agents’ own pockets in some of these cases,” Sheriff Louderback said.

Outdated regulations and legal loopholes also make CPB’s job harder.

The panelists said the Flores Settlement Agreement caused the border crisis. This agreement, made in 1997, requires the government to release alien minors to their parents “without unnecessary delay” and to hold them in the least restrictive facilities while they are processed. A federal court ruled in 2016 that the Department of Homeland Security can hold illegal minors for no more than 20 days.

“Flores encourages UAC [unaccompanied alien children] to enter the United States illegally and encourages the parents of UAC to hire smugglers to bring them to the United States because they know that those children are almost guaranteed to be released,” Mr. Arthur said.

Mr. Homan and Mr. Arthur said the Flores Agreement must be changed. He said it was only supposed to be in effect for five years, but the courts have kept it in place for over 20 years.

Mr. Homan, the former ICE director, says that before the Flores agreement, authorities could keep migrants detained long enough to see a judge. This took roughly 45 days and 90 percent of migrants lost their cases and were deported. “The border numbers went down,” he said.

Mr. Arthur noted that DHS proposed a change to Flores last September that would allow more facilities to be used to hold families. Nothing has happened.

The panel said that the Trafficking Victims Act (TVPRA) also needs to be changed because it encouraged the flow of illegal children. The law requires unaccompanied alien children (UACs) from a contiguous country — Mexico or Canada — to be immediately deported if they have not clearly been trafficked and cannot demonstrate a credible fear of persecution. The rules are different for UACs from non-contiguous nations, which is why so many are now coming from Central America.

“They have to be transferred to the care and custody of HHS within 72 hours and placed in formal removal proceedings [rather than be deported immediately] even if they haven’t been trafficked,” Mr. Arthur said. “Again, this encourages aliens who are illegally present in the United States to pay smugglers to bring their children to this country. How do I know that? Because 78.7 percent of those children are released to parents and guardians without status in this country.”

The panel urged Congress to fix this loophole and make it possible to deport minors no matter where they are from.

Mr. Arthur and Mr. Homan said Congress must change asylum laws. Both said too many illegal immigrants abuse the credible fear process to delay deportation.

Mr. Arthur explained:

Aliens caught entering the United States illegally are supposed to be expeditiously removed from this country without seeking an immigration judge. If the alien claims a credible fear of [persecution after] return, however, that alien must be interviewed by an asylum officer. If the asylum officer finds that the alien has established a credible fear, the alien must be placed into removal proceedings to apply for asylum. Credible fear . . . is found in 75 to 90 percent of all cases, but only about 12 percent of aliens who claim credible fear are granted asylum at the end of the day.

“The most egregious example of abuse of the credible fear process occurred two weeks ago when alleged cartel members showed up at the Douglas, Arizona, port of entry seeking asylum after fleeing a gun battle in Agua Prieta, Sonora,” he said. “Our immigration laws don’t exist to protect the losing side of a gun battle in a cartel, sorry.”

The CIS scholar says the standard of proof for credible fear needs to be raised. “Congress must also make it clear that credible fear should be found only when it’s more probable than not that the statements made by the alien are truthful,” he said. “All too often asylum officers believe they have to accept the aliens’ statements at face value.”

Mr. Arthur believes President Trump must appoint a border czar: “Right now we have DHS (Homeland Security), DOS (State), DOJ (Justice), HHS (Health and Human Services), and DOL (Labor), all of which have jurisdiction over immigration one way or another. The activities of those organizations need to be coordinated. Somebody needs to do it.”

That somebody may be Mr. Homan. The president announced in June he wants Mr. Homan as his border czar, but the former ICE director has not accepted the job. He said at the CIS event he’s still considering the offer.

The CIS panel clearly laid out the border crisis and possible solutions. The agencies are doing all they can. It’s up to Congress and the President to solve the problem.