A History of the US Border Crisis

The separation of children from their parents at the US border has a long and nebulous history.  What makes the situation so confusing is that it doesn’t involve any single “law” so much as a series of interrelated laws, judicial decisions, and policy changes over twenty years or so concerning the admission and detention of asylum seekers at the US border.

The story begins in 1996 with the passage of the last major immigration law, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA, pronounced “Ira-Ira”), which created two sets of rules concerning the detention of those seeking asylum. The first set of rules governs the detention of so-called arriving aliens, non-citizens who present themselves at a U.S. port of entry.  If they pass a credible fear test, i.e. a series of questions testing whether they meet the basic eligibility requirements for asylum, such as a fear of returning, then arriving aliens are provided a hearing before an immigration judge, but importantly, they are not eligible for release on bond even by an immigration judge.

Different rules apply to aliens apprehended farther than 100 miles from the border or within the interior of the country. Like arriving aliens, these individuals are also provided a hearing before a judge but, unlike them, they can request bond to secure their release.

Around this same time, the Clinton administration reached the now-famous Flores Agreement in a lawsuit with plaintiffs who challenged the legacy-INS’s child detention policies. The terms of the Flores agreement became nationwide policy mandating the transfer of unaccompanied minors from Customs and Border Protection to Health and Human Services within 72 hours and setting limits on how long such children may remain in jail (usually 20 days).

Despite the humane treatment afforded to minors by the Flores Agreement, the overwhelming majority of immigrants at the time could not avail themselves of its terms. This is because most border crossers in the 1990s were adult males seeking US employment to send money back to their families.  Compared to today, very few people brought their children, in part due to the dangerous conditions at the US-Mexico border.

Most of these policies remained relatively static during President Bush’s administration, save for the 2008 reauthorization of the Trafficking Victims Protection Act (TVPA). One of its key provisions included streamlining the rules for obtaining permanent residency for children who a family court judge has deemed abandoned, so called “Special Immigrant Juveniles,” or “SIJ.”  SIJ is intended for children who are present in the United States without a parent, and do not intend to reunite with that parent after obtaining legal permanent resident status.  Once a family judge declares a child abandoned, the route to obtain a green card under the TVPA is remarkably easy.  One merely files a form with United States Citizenship and Immigration Services attaching the family judge order.  In 2010-11, the definition of “abandoned” was broadened to include children who have been abandoned by only one parent.

The election of President Obama in 2008 changed the admission and detention landscape precipitously through his government’s incremental policy adjustments, mostly designed to create a more favorable environment for asylum seekers at the border. One such change came in 2009 when Obama’s Department of Homeland Security broadened its use of statutory parole authority to provide entry to aliens across the border specifically to pursue claims of asylum.  Historically, parole had been used for medical emergencies and to bring in witnesses for criminal prosecutions, whereas President Obama expanded its use of parole to provide entry to any asylum applicant who successfully passed a credible fear test at a port of entry – a rather low bar by any objective standard. Most importantly, by paroling these arriving aliens into the United States, President Obama removed the primary deterrent associated with presenting oneself at a port of entry to apply for asylum: the prospect of mandatory detention without bond as required by IIRIRA.

A more immediate reaction sprang from President Obama’s creation of the Deferred Action for Childhood Arrivals (“DACA”) program in June of 2012. By its terms, DACA was quite limited – it provided work authorization to a small subset of children and you adults who were brought illegally to the United States.  Nevertheless, DACA breathed new hope into a generation of young immigrants and their family members, many of whom had given up ever securing any lawful status. Taken together with the simultaneous discussions on immigration reform then in Congress, there was a feeling in the air that real change was about to come.

That air of change drifted south to Central America, a region that was then plagued by an uptick in gang violence throughout Honduras, Guatemala and El Salvador. Within a year of DACA’s implementation, rumors of a child-based amnesty program emerged throughout Tegucigalpa, San Salvador and Guatemala City. Newspapers in those countries reported tales of coyotes luring young mothers with stories of the “Obama Waiver,” which supposedly granted immediate work authorization to children and their parents who were caught at the US border. By 2014, these rumors turned into a full-on border crisis, first with children being sent alone, and then families traveling together.

What happened during the border crisis was that, while nobody actually found the elusive “Obama Waiver,” these migrants did discover and promulgate knowledge of the weak points in America’s border policy. First came the unaccompanied minors, who qualified for green cards so long as a family court judge deemed them abandoned, which they always did. Again, the definition of “abandoned” was stretched rather thin. Our office represented one child who, according to his family lawyer, blurted out in his abandonment hearing that he “talked to his dad all the time.”  The family judge nonetheless used the stretched definition of one-parent abandonment, finding the kid abandoned and giving him a straight path to permanent residency. The joy wouldn’t last however, as the SIJ parents soon learned that granting SIJ cut them off from receiving any immigration benefits from their child.

With the weaknesses of SIJ exposed, the migrants soon discovered a second weak point in President Obama’s border policy: the expansion of parole to anyone who passed a credible fear test at a port of entry.  As stated above, this policy encouraged non-citizens to stand in line at a port of entry, recite a few rehearsed line to an asylum officer that you’re afraid to return home, and, instead of staying in jail during the next 45 days to see a judge as required for arriving aliens under IIRIRA, be paroled into the country for a wait of five to ten years to have a full immigration court hearing. In the ensuing years, stories appeared in newspapers about how border crossers actively sought out border officers, rather than sneak past them as they did in years past.

The third weak point was discovered only after President Obama’s administration attempted to accommodate the increasing number of family units streaming across the border in 2014-2015. To handle this newly-reconstituted migrant flow, Immigration and Customs Enforcement (ICE) began to hold families all together in special family detention units as they awaited their hearings before an immigration judge. The few such detention centers ICE had on hand quickly filled up. At the same time, at least one federal judge found that holding families in detention centers violated the children’s rights under the Flores Agreement. In short order, President Obama’s administration gave up on family detention altogether and instead would simply release anyone found crossing the border illegal with a child.

In sum, a Central American migrant in 2014-15 was almost spoiled for choice on how she might enter the United States.  For instance, she might apply for asylum at a port of entry, and so long as she passes the credible fear test, she would be paroled in to the United States without fear of mandatory detention as per IIRIRA. Alternatively, she might bring her child with her through the desert. If caught, she knew that the Administration lacked the resources to keep her detained very long, and she would likely be released in a matter of days. And then, if her asylum claim failed, her child can likely obtain a green card under the more expansive abandoned child SIJ definition.

This brings us, finally, to Trump’s current and ill-advised child separation policy. The first thing Trump did with his first Executive Action was to vastly curtail CBP’s use of parole, particularly for asylum seekers.  Because asylum seekers at ports of entry would once again be detained for the duration of the asylum process as mandated by IIRIRA, the migrant flow shifted away from the ports of entry and back to crossing the border illegally.  In doing so, the applicant could guarantee a bond hearing before an immigration judge (and if released, could spend more than five years waiting for a hearing).

At bottom, President Trump’s family separation policy was an ill-conceived solution to discourage asylum applicants from using their children as a shield to avoid detention when crossing the border, while also avoiding the legal pitfalls that plagued the prior administration’s use of the family detention centers, which have already been declared to violate the Flores agreement.

The logic of the policy is as follows: President Trump’s Department of Justice begins by prosecuting illegal border crossers in criminal court. In doing so, ICE transfers jurisdiction over the applicant’s custody over to the US Marshall’s Service, which mandates separation to all people waiting for criminal prosecution. While the parent remains in Marshall’s Service custody, the child is promptly transferred to HHS custody, as per the strict rules of the Flores Agreement, and possibly released altogether. When the parent finishes the criminal proceedings, he or she is given back to ICE to hold the applicant until he or she obtains bond, or has an asylum hearing before the judge.

While the system is unbelievably cruel, its underlying question remains unanswered: how does the United States effectively discourage the trafficking of children across the desert so the parents can avoid detention, while simultaneously upholding the human rights protections for these same children as provided by the Flores agreement?

President Obama’s administration tried to essentially open our borders to parole in anyone who could pass a credible fear interview, but this policy only resulted in a border crisis and a doubling of cases before our already full immigration courts.  Trump, meanwhile, violates our remaining moral authority by resorting to tactics that are universally condemnable.  So long as families continue to flee gang violence in their home countries, and so long as they see the United States as their ultimate destination, the shining city upon a hill, we will continue to wrestle with this issue.

Michael J. Wildes, a Democratic former mayor of Englewood, will be on the ballot for that position in November He is the managing partner of Wildes and Weinberg, PC, specializing in immigration law, and a former federal prosecutor. The firm’s website is www.wildeslaw.com.

About the Author
Michael Wildes is Managing Partner of Wildes & Weinberg, a leading immigration law firm in the U.S. Wildes is a former Federal Prosecutor with the US Attorney's Office who has testified on Capitol Hill in connection with anti-terrorism legislation. He is Adjunct Professor of Law at the Benjamin N. Cardozo School of Law in New York, where he teaches immigration law and serves as personal immigration lawyer to Melania Trump, Pele and Jean-Georges.
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