July 15, 2019 Feature

The Border: How We Got Here

Ava Benach

Over the last several years, several hashtag-worthy slogans have emerged from the border. Catch and release, family detention, family separation, zero tolerance, asylum ban, and Remain in Mexico are part of a sea of catchphrases that have emerged to address the current situation at the border: the unprecedented number of families with children turning themselves in to border agents, either at the port of entry or inside the US after crossing the unguarded border unlawfully. These family units have presented a new and unique challenge to the administration, which came into power promising a get-tough policy on immigration. As the challenge presented by families fleeing predominantly the three countries of Central America’s “Northern Triangle”—Guatemala, Honduras, and El Salvador—surges and recedes, the administration has tried a series of actions to fulfill its campaign promise to be tough on immigration. Meanwhile, immigrants have found new ways to seek to enter the United States, and immigrant advocates have pushed back forcefully in the federal courts.

The US southern border stretches 1,954 miles from San Ysidro, California, on the Pacific Ocean to Brownsville, Texas, on the Gulf of Mexico. It is largely desert, although it is at parts bisected by the Rio Grande. It is urban but also encompasses some of the most remote parts of the country. It is a place where 350 million people cross lawfully every year and one billion dollars’ worth of goods are traded daily. It is also the place where the United States encounter the results of the decisions by thousands of people to seek a new life in the United States.

Obviously, it is impossible to know how many people cross the border without the permission of the US government. The accepted method of estimating illegal border crossings is to record the apprehension of border crossers. Despite a lot of rhetoric that there is an invasion on the border, the undisputed fact is that apprehensions of unlawful border crossers have been falling for years and remain at historically low levels. What is new and significant, however, and has triggered the administration’s actions is the arrival of large numbers of family units. Historically, it has been adults making the dangerous journey from Central America to the US border. The presence of adults with their children has prompted the administration to experiment with new ideas to address the situation.

For as long as there has been a border, adults from countries to the south of the United States have migrated north in search of work, leaving behind families, who would receive money sent home by the adult working in the United States. For decades, such individuals would work during peak periods such as harvests or temperate weather when construction could be done. They might return home for a few weeks or months and make the crossing again. This pattern changed in the mid-1990s when Congress passed, and President Clinton signed, laws that steeply penalized this practice. In addition, this was the era of the militarization of the border. Through the presidencies of Bill Clinton, George W. Bush, and Barack Obama, the use of walls, sensors, and barriers along the border grew rapidly. Simultaneously, these administrations increased hiring and funding for the US Border Patrol, turning it into the largest American law enforcement agency. This increased enforcement, and the downturn in the US economy in 2008, dramatically reduced border crossings over the last 20 years.

In 2014, the first Central American “surge” dramatically reshaped the status quo at the border. In the spring of 2014, thousands of Central American youth began arriving at the U.S. border and requesting protection. The “surge,” as it became known, was in response to deteriorating conditions in the countries of the Northern Triangle, specifically the dominance and violence of the international gangs, the MS-13 and MS-18. These gangs have their origins in the streets of Los Angeles in the 80s when Salvadoran youth created gangs in response to the existing gang structure in Los Angeles. Deportations rose in the late 90s because of the 1996 IIRIRA law, and the gangs established a foothold in Central America, which has grown to a stronghold.

The omnipresence of gangs in life in the countries of the Northern Triangle cannot be overstated. Gangs control entire cities and towns without the interference, and often with the collaboration, of local police forces. They run extortion rings, drug trades, and prostitution enterprises. In addition, they recruit heavily from the children of these countries. Refusal to join a gang can mean death, not only for the individual who refuses, but also for the family members of that individual. These countries have the highest murder rates in the Western Hemisphere. In addition, they are desperately poor. The constant threat of violence and the crippled economic situation in the countries of the Northern Triangle are the principal driving factors that cause migration to the United States.

The question of what to do with minors seeking entry into the United States has vexed immigration policy makers for decades. Initial efforts in the 80s resulted in the detention of children with adults. In 1985, a class action was filed challenging the terms of detention of the children. That litigation, which was filed as Flores v. Meese, lasted from 1985 to 1997, when the government settled the litigation. The Flores settlement requires the government to release a child as soon as possible to either his or her parents, a legal guardian, another relative, or a prescreened organization willing to take custody of the child. The settlement also required the government to keep the child in the least restrictive conditions possible until the child can be released. Due to questions about the Immigration & Naturalization Service, and later the Department of Homeland Security’s compliance with the settlement, Congress passed a law in 2008 to turn the custody of children over to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services. From 2008 to 2014, the system worked to release unaccompanied children to family members or, where no such family member was available, to keep them in residential facilities contracted by the ORR. When a parent showed up with a child, the parent and child would be paroled into the United States to appear in removal proceedings.

This all changed in 2014 when the Obama administration was confronted with a surge of unaccompanied children and parents and children arriving at the southern border. The Obama administration, to deter parents and children from traveling to the United States, created family detention units where parents and children could be detained together. For the first time in decades, the US government was detaining children on civil immigration charges. The government first set up a makeshift camp out of a former military installation in Artesia, New Mexico. Later it created large detention facilities for parents and children in Texas, at two facilities known as Karnes and Dilley. They also sent a portion of mothers and children to Berks County, Pennsylvania, where they detain them to this day.

Immigration lawyers filed a lawsuit arguing that the government was violating the Flores agreement. US Judge Dolly Gee agreed and applied Flores not just to the unaccompanied minors who were the original plaintiffs, but also to minors who arrived with parents. The court required DHS to release the parents and children in 20 days. The practice of family detention that flourished from 2014 to 2016 ebbed, but did not entirely disappear, after Judge Gee’s ruling.

Restricted in their ability to detain more people, the Obama administration turned to another tactic to limit the number of people who could enter the United States and ask for asylum. Individuals and families who arrive at the border without appropriate visas for entry would ask for asylum. This is permitted by the statute, 8 U.S.C. § 1158, which states:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

The statute makes it very clear that an individual presenting herself at a port of entry may apply for asylum. In 2016, US ports of entry began telling people that they did not have “capacity” to process claims to asylum. Ports of entry would refuse to accept people who were requesting entry to apply for asylum. This practice has come to be known as “metering,” whereby US Customs and Border Protection refuses to accept immigrants who request asylum. The tension between the metering practice and the universal right to apply for asylum enshrined in 8 U.S.C. § 1158 led to another lawsuit against the government. That litigation remains pending.

Underlying the family detention practice was the Obama administration’s belief that families fleeing the Northern Triangle could be deterred from making the dangerous journey north. The administration believed that smugglers had assured migrants that if they traveled alone, they would be detained until they could be deported, but if they traveled with a child, they would be released into the interior of the country. The administration reasoned that, if migrants knew that they would be detained no matter who they showed up with, they would not risk the journey north. This policy of deterrence would remain a staple of US immigration policy into the Trump administration.

Donald Trump campaigned on a robust anti-immigrant platform. Among the many policies he thundered against, one of his most consistent targets was what he called the “catch and release” practice related to parents traveling with children. As Trump saw it, the release of family units was an invitation to illegal border crossing and to migration to the United States. The new Trump administration promised to end the release of detained asylum seekers and to keep immigrants detained through their asylum hearing.

The practice of metering and the certainty of detention encouraged many asylum seekers away from the urban zones with ports of entry and into the desert to cross without inspection. In July 2017, the new Trump administration experimented with a new policy called “zero tolerance.” To deter illegal crossing, the government dusted off a statute that was largely unenforced for decades. The administration began to charge border crossers in the El Paso sector with illegal entry under 8 U.S.C. § 1325, which makes it a misdemeanor to cross a border at a place other than a designated port of entry. The zero-tolerance aspect of this policy meant that every individual who unlawfully crossed the border and was caught would be charged with a federal crime. The zero-tolerance approach extended to parents traveling with children. However, the children could not be charged. When their parent was charged with a crime, the parent was taken into the custody of the Marshals, which obviously could not take the children. The children accompanying the charged immigrants were thus treated as unaccompanied minors and sent into the custody of ORR. The zero-tolerance policy quickly morphed into the “family separation crisis.”

The management of zero tolerance and the detention of children did not extend to an effective means of ensuring that the parent, in criminal custody, would have a means of reuniting with the child in ORR custody. Children were sent to shelters across the country with scant documentation of the identity of the parent with whom they had entered. Meanwhile, the parents often accepted a hasty guilty plea and order of removal in the hope of a prompt reunion with their children.

Once again, courts stepped in to stop the practice of family separation, and the administration issued an executive order in June 2018 formally ending the practice. The court ordered the government to reunite children separated from their parents. Actual numbers of parents and children that were separated during the zero-tolerance policy period from July 2017 to June 2018 are disputed. It is agreed that at least 2,700 children were separated from their parents, although the Office of Inspector General for the Department of Homeland Security indicates that the number is significantly higher. In addition, over 400 parents were deported during this period without their children. As of March 2019, at least 200 children remain separated from their parents.

Despite the administration’s heavy hand, migrants continued to stream north to flee the violence and poverty of the Northern Triangle. Migrants increasingly turned to caravans to avoid paying large fees to smugglers and to gain the security of a group. One well-publicized caravan formed in the fall of 2018 and became a major issue during the 2018 congressional elections. The rhetoric painted the caravan as an invasion of gang members, drug traffickers, human traffickers, and criminals. The administration could never verify these claims, and the caravan eventually reached Tijuana, Mexico, across from San Ysidro, California. The caravan ran headlong into the metering process in Tijuana. It is estimated that, as of March 2019, there are approximately 8,000–10,000 refugees camped out in Tijuana waiting for a chance to apply for asylum in the United States.

In late 2018, because of the metering policy, the process of seeking entry to apply for asylum became an act of unofficial cooperation between US Customs and Border Protection, Mexican immigration officials, and the migrants themselves. They have created “the list.” Migrants arriving in Tijuana place their name in a book and get a number. The book is maintained by migrants who are on the list themselves. The list is plagued by problems endemic in society. Racism and homophobia make it more challenging for indigenous people and LGBTQ individuals to access the list. Unaccompanied minors also have difficulty as it is against Mexican law for them to be in Mexico without a guardian. Every night, the book is turned over to Mexican immigration officials, who keep the book overnight. Each morning it is returned to the migrants who have set up at a border crossing called El Chaparral. The United States informs Mexican immigration how many asylum applicants they will accept each day—it is usually about 40—and the numbers on the list are read off in the open air. When the people on the list identify themselves, they are taken in a van operated by Mexican immigration to the US port, which then processes their request for asylum. Some asylum applicants are immediately paroled into the United States with instructions to appear in court in the future. Others are detained while awaiting a hearing date.

In the summer of 2018, the administration attempted another limitation on asylum. The administration published rules that stated that anyone who entered without inspection could not obtain asylum. The rule presented an obvious conflict with the asylum statute, which makes asylum available to anyone in the United States regardless of how they entered. Advocates challenged the so-called asylum ban in federal court and obtained an injunction stopping implementation of the rule’s exclusion to asylum eligibility for those who had crossed the border unlawfully.

The failure of the asylum ban prompted the administration to embrace another unprecedented proposal, the “Remain in Mexico” plan, which was announced and initiated in December 2018. It was initially rolled out at the border crossing between Tijuana, Mexico, and San Ysidro, California. Officially dubbed the “Migrant Protection Protocols,” the plan allows individuals to present themselves at the San Ysidro port of entry to ask for asylum and to receive a hearing date in front of an immigration judge. However, rather than paroling the asylum seeker into the United States, the plan requires the applicant to return to Mexico and wait for her hearing in Mexico. On the appointed hearing date, the applicant could present herself again at the same port of entry and receive transportation to the immigration court in San Diego. Upon the conclusion of the hearing in front of the judge, the applicant would be returned to Mexico to await her next hearing, where the same procedure would unfold. Many asylum cases require multiple hearings before a decision can be made on the application.

The Remain in Mexico plan is meant to address what the administration states is a significant problem: that asylum seekers are released into the interior of the United States and do not show up for their asylum hearings. However, this is not true. According to the Department of Justice Executive Office for Immigration Review (the immigration courts), over 90 percent of asylum seekers appear for their hearings. This rate of appearance has been steady for several years now. Meanwhile, the Remain in Mexico plan causes significant damage to an asylum seeker’s access to due process. By having to remain in Mexico, applicants are unable to have meaningful access to counsel to prepare for their asylum hearings. A 2016 report by the American Immigration Council states that represented nondetained immigrants are five times more likely to obtain the relief requested in immigration court than those without counsel. Asylum applicants are entitled to be represented in immigration court, and by forcing them to remain in Mexico, the administration is depriving many immigrants of access to counsel.

In addition, the atmosphere in Tijuana and other border cities is growing increasingly tense. Thousands of migrants are camped in makeshift shelters waiting for a chance to enter the United States. Human traffickers, gangs, and drug trafficking organizations are all operating in these camps, and local hostility to the presence of the migrants is growing. I spent close to a week in Tijuana in December. During the time I was there, two Honduran boys were murdered before they had a chance to seek asylum. The current conditions in the Mexican towns on the border is extremely dangerous for asylum seekers, especially for women and children as well as LGBTQ individuals and unaccompanied minors, and the Remain in Mexico plan puts them at greater risk. As I write this in March 2019, a lawsuit against the Remain in Mexico plan has been filed. At the same time, the administration has indicated that it intends to extend Remain in Mexico to the El Paso, Texas–Ciudad Juarez, Mexico, border.

Undoubtedly, there will be more changes at the border before this article is published. Asylum seekers fleeing violence will seek to adapt to the moves made by the administration, and the administration will continue to seek novel ways to restrict the flow of migrants to the United States. It is ironic that this is happening at times of historically low immigration and a strong economy. The border and the country’s reaction to asylum seekers will remain a hot-button issue through the 2020 election, where America will pass judgment on the administration’s aggressive tactics. The only certainty is change.

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Ava Benach is managing partner at Benach Collopy LLP.