Biden’s Border Problem, and How to Fix It

The U.S.-Mexico border wall in Nogales, Arizona. (Ignatian Solidarity Network, https://tinyurl.com/ynfpzyv3; CC BY-NC 2.0, https://creativecommons.org/licenses/by-nc/2.0/) President Biden has a border problem. The U.S. is seeing a deeply troubling increase both in total unaccompanied children (UACs) and in very young UACs—children as young as six or seven years old. The current problems at the border have both short- and long-term causes. In the short term, the Biden administration contributed to the problem with two related steps. First, it chose to continue the Title 42 coronavirus border restrictions that severely limit family entry. Second, it chose to exempt UACs from Title 42. In the longer term, addressing the exponential increase in both UACs and immigrant families over the past 10-12 years will require action by Congress and the courts. This post addresses both short- and long-term issues, centering on UACs and families. The story of sharply increased Central American immigration to the United States from 2007 on includes push, pull and operational factors. Push factors are forces that drive Central Americans out of their home countries. Those forces include poverty, climate change and violence. For example, climate change has reduced coffee production , which is a prime source of employment in Central America. High rates of gang activity and violence in Central America also spur immigration, although many accounts overstate the role of violence: Death rates in Guatemala—the principal home country of Central American immigrants—have dropped 50 percent in recent years.  If escape from push factors like poverty, climate change and violence is immigrants’ goal, the operational factor of smuggling networks is the means. Smugglers ease the logistical and safety challenges of travel to the U.S. border. Like other businesses, smuggling networks charge a price for their work and try to cultivate new business opportunities.  Smuggling networks also operationalize pull factors. Pull factors are forces in the United States that attract immigrants from Central America, such as economic opportunity and family reunification. U.S. economic opportunity contrasts favorably with diminishing opportunities in Central America. Immigrants from Central America may also want to reunite with family members already in the United States. (See this analysis by Juliette Kayyem, former assistant secretary of homeland security in the Obama administration).  Once smuggling networks have gotten Central American immigrants to the border, a second operational factor allows immigrants to remain here: U.S. law. Just as smugglers are a means for immigrants to arrive at the border, U.S. law is a means for immigrants to realize economic opportunity and family reunification in the United States. As we shall see, features of U.S. substantive immigration law, procedure and enforcement—such as the burgeoning asylum backlog, the inclusion of families in the 1997 Flores settlement agreement (FSA), and provisions of the Trafficking Victims Protection Reauthorization Act (TVPRA)—allow many immigrants to obtain speedy release from detention and sometimes qualify for legal permanent resident status. To be sure, each of these legal features also provides needed relief for persons who can stake out a meritorious claim and in some cases—such as asylum—allows the United States to fulfill duties under international law. But those successes are only one side of the ledger. U.S. law also erects formidable practical obstacles to the removal of those immigrants who ultimately lose on the merits.  U.S. law complements the operational role of smuggling networks. For hard-pressed Central Americans, paying smugglers has always been a gamble. While Central Americans living in poverty may not initially know the features of U.S. law such as asylum backlogs that delay adjudication, smugglers fill that information gap. Additional information comes from Central Americans’ relatives in the United States. Fulfilling their side of the wager, Central Americans invest their savings, hoping that with smugglers’ help they can attain a more safe and prosperous future in the United States for themselves or their children. Favorable trends in U.S. law increase the odds of success. It is difficult to precisely calculate the role of U.S. law when weighed against push factors such as poverty, climate change and violence. But statistics and common sense tell us that the role of U.S. law is significant.  Opportunistic entities such as smuggling networks always use the law for their own purposes. As California Supreme Court Justice and Stanford Visiting Professor Mariano-Florentino Cuellar has explained , U.S. corporations use the law in the same way. U.S. employers benefit from weak enforcement of the employer sanctions provisions of the Immigration and Nationality Act, which on paper bar employment of undocumented immigrants. Echoing Justice Cuellar, Adam Cox and Cristina Rodriguez have observed that the absence of remedies in U.S. law for labor law violations against undocumented workers fuels exploitation of this vulnerable group. Smugglers are merely playing the same game as U.S. firms. This analysis of push, pull and operational factors sets up recommendations for reform. To restore control at the border, the Biden administration should halt the Title 42 program for all entrants. Immigration advocates may well applaud this change. However, in the longer term, Congress, immigration officials and the courts will have to take other actions that immigration advocates may criticize. Congress will need to limit Special Immigrant Juvenile Status (SIJS) under the TVPRA of 2008. Immigration officials will need to ask the courts to modify the Flores settlement to clarify that the agreement’s rapid release requirements apply only to UACs, not to accompanied children in immigrant families. The government should be able to detain immigrant families for as long as 45 days, to complete the expedited removal process. In addition, the government should implement “last-in, first-out” (LIFO) asylum processing to reduce the massive asylum backlog. Currently, the Biden administration’s layering of Title 42 and the UAC exemption creates an operational factor encouraging entry of UACs, including unprecedented numbers of very young children.  Under the Title 42 program—named after the volume of the U.S. statutory code that deals with health legislation —the Centers for Disease Control and Prevention can limit entry into the United States to address public health emergencies. As part of the Trump administration’s response to the coronavirus pandemic, the CDC sharply limited entry at the U.S.-Mexico border. While immigration advocates challenged the Title 42 program and many public health experts criticized the program as misguided and inadequately tailored to public health threats, the program continues in effect. Biden has maintained the program, although administration sources have conceded that the program’s rationale—if it was ever plausible—will continue to erode as coronavirus vaccinations become more widely available.  The Biden administration has exempted one group of foreign nationals from Title 42: UACs. In late January, the U.S. Court of Appeals for the D.C. Circuit stayed a decision by Judge Emmet Sullivan of the U.S. District Court for the District of Columbia in P.J.E.S. v. Wolf enjoining the Title 42 program. Sullivan had found that the summary removal of UACs at risk of torture, persecution and abuse would be an “irreparable injury” that outweighed any public health benefits of the Title 42 program. Notwithstanding the stay of Sullivan’s order, the Biden administration determined that subjecting UACs to summary removal would be inappropriate and inhumane. As a result, the Department of Homeland Security is handling UACs under the pre-Title 42 framework: the TVPRA. That gap between the treatment of families under Title 42 and the more generous treatment of UACs under the TVPRA has become a pull factor for increased UAC entries. Explaining why requires a deeper dive into the TVPRA’s provisions. Because Congress has recognized that the government has a responsibility to protect UACs, who have no parent to care for them, the TVPRA requires speedy release of UACs from detention. Under the TVPRA, the Department of Homeland Security must within 72 hours of a UAC’s arrest at the border transfer custody to the Office of Refugee Resettlement (ORR) of the Department of Health and Human Services. Due to provisions of the TVPRA and related government undertakings based on the Flores settlement (more later), ORR then has 20 days to place the child safely in a community in the U.S. interior. The re
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