(CBP photo)

GAO Tells DHS to Act on Family Apprehensions as Committees Say Congressional Oversight is Being Impeded

The Government Accountability Office (GAO) has publicly released two reports pertaining to the processing of families at the Southwest border.

In fiscal year 2019, more than 527,000 noncitizen family unit members (children under 18 and their parents or legal guardians) were apprehended at or between U.S. ports of entry along the southwest border—a 227 percent increase over fiscal year 2018. 

Department of Homeland Security (DHS) component agencies collect information on noncitizen family members who are apprehended together at the southwest border. Each component collects the information it needs, but GAO found they do not always consider the information needed by other DHS components. Further, while policy requires officers and agents to track any family separations, GAO found those from June 2018 through March 2019 were not accurately tracked, and agents inconsistently recorded details.

Fragmented processes

In its first report examining fragmentation in DHS processes for apprehended family members, GAO says DHS risks removing individuals from the country who may be eligible for relief or protection based on their family relationships.

DHS’s U.S. Customs and Border Protection (CBP) apprehends family members and determines how information about each individual—and his or her relationship to other family members—will be collected and documented. Other DHS components, such as U.S. Immigration and Customs Enforcement (ICE), use information collected at the time of apprehension to inform how those who are members of a family, including children, will proceed through immigration proceedings. Family members apprehended at the border and placed into expedited removal that indicate an intention to apply for asylum, or a fear of persecution or torture or fear of return to their home country, are referred to DHS’s U.S. Citizenship and Immigration Services (USCIS) for a credible fear screening. 

The GAO review found that DHS has not identified the information its components collectively need about apprehended family members. The March 18 report notes, “each DHS component collects information to meet its own operational needs, and does not consider the information needs of other components. For example, the information about family members that CBP needs differs from the information about family members that USCIS needs”. CBP officials told GAO they would not generally identify spouses and children aged 18 to 21 apprehended with a parent as family members, although USCIS’s definition of a dependent for credible fear screening purposes includes spouses and unmarried children under age 21.

CBP collects information about certain family members for its operational purposes, but GAO found it does not collect and document information at the time of apprehension that other DHS components may later need. Specifically, CBP collects and documents information about parents and their children under age 18 who are apprehended together. “However, consistent with regulation, USCIS policy is to include any dependents who arrived concurrently with the principal applicant, such as a spouse or unmarried child under age 21, on a principal applicant’s positive credible fear determination if the dependent wants to be included,” he report states. USCIS and ICE officials say that it can be difficult to identify spouses and children age 18 to 21 because CBP does not regularly document such family relationships.

GAO found DHS does not have a mechanism to link the records of family members apprehended together across its components that need this information. As a result, DHS components may not have access to all the information about family members they need to make effective operational decisions.

The watchdog’s report includes four recommendations to DHS, including that DHS identify the information its components collectively need to process family members apprehended together, collect and document that information at the time of apprehension, and evaluate options for developing a unique identifier shared across DHS’s data systems to link family members apprehended together.

DHS concurred with the recommendations. It stated that the DHS Office of Immigration Statistics within the DHS Office of Strategy, Policy, and Plans will work with CBP, ICE, USCIS, and interagency partners to establish a comprehensive set of information to collect on family members apprehended at the border. Further, DHS stated that after DHS identifies the information about families apprehended together that its components collectively need, CBP will work with DHS’s policy office to ensure all required information is collected at the time of apprehension on the Form I-213. In addition, Border Patrol and the Office of Field Operations will issue guidance to their agents and officers to ensure they document the information about family members apprehended together that DHS components collectively need. Finally, the DHS policy office will work with CBP, ICE, and USCIS to develop a unique shared identifier linking family members apprehended together, which it expects to do by September 30, 2020.

Insufficient controls

Also released on March 18, GAO’s report on processing family apprehensions says CBP developed some policies and procedures for processing family units but does not have sufficient controls to ensure effective implementation. 

Apprehensions of family unit members (noncitizen children under 18 and their parents or legal guardians) grew from about 22 percent of total southwest border apprehensions in fiscal year 2016 to about 51 percent of such apprehensions during the first two quarters of fiscal year 2019—the most current data available. During this period, CBP data indicated that most apprehensions of family units (about 76 percent) occurred between ports of entry by the U.S. Border Patrol. With regard to family separations, from April 2018 through March 2019, CBP data indicate it separated at least 2,700 children from their parents, processing them as unaccompanied alien children (UAC) and transferring them to the Department of Health and Human Services (HHS).

CBP policy requires that Border Patrol agents and officers track apprehended family unit members and, if applicable, subsequent family separations in agency data systems. However, GAO’s analysis of Border Patrol documents and data indicates that its agents have not accurately and consistently recorded family units and separations. 

GAO examined a nongeneralizable sample of 40 HHS records for children involved in family separations between June 2018 and March 2019 and matched them to Border Patrol apprehensions data for these children. GAO found Border Patrol did not initially record 14 of the 40 children as a member of a family unit (linked to a parent’s record) per Border Patrol policy, and thus did not record their subsequent family separation. 

GAO also found an additional 10 children among the 40 whose family separations were not documented in Border Patrol’s data system as required by CBP policy during this period. 

Border Patrol officials told GAO that they were “unsure of the extent of these problems”, and stated that, among other things, data-entry errors may have arisen due to demands on agents as the number of family unit apprehensions increased. It is therefore unclear the extent to which Border Patrol has accurate records of separated family unit members in its data system. 

In addition, GAO found that Border Patrol agents inconsistently recorded information about the reasons for and circumstances surrounding family separations on required forms. 

Immigration and Customs Enforcement (ICE) is responsible for detaining and removing the family units apprehended by CBP. ICE officers determine whether to accept or deny a referral of a family unit from CBP for detention in one of ICE’s family residential centers, release family unit members into the interior of the United States, or remove family unit members (who are subject to final orders of removal) from the United States. 

GAO’s review found that while ICE has procedures for processing and releasing family units from ICE custody, it relies on a manual process to track separations that occur in ICE custody (generally at one of ICE’s family residential centers) and does not systematically record this information in its data system. GAO concludes that ICE does therefore not have reasonable assurance that parents whom ICE separated from their children and are subject to removal are able to make arrangements for their children, including being removed with them, as provided in ICE’s policy for detained parents.

Difficulties were also found with long-standing differences in opinion. In 2018, DHS and HHS developed written interagency agreements regarding UAC. However, DHS and HHS officials told GAO that they have not resolved differences in opinion about how and what information agencies are to share related to the care and placement of those children, including those referred to HHS after a family separation. 

GAO’s report says that DHS has not consistently provided information and documents to HHS as specified in interagency agreements. “HHS officials also identified additional information they need from DHS, about those adults apprehended with children and later separated, to inform their decisions about placing children with sponsors and reunifying separated families, when necessary” the report says. GAO maintains that increased collaboration between DHS and HHS about information sharing would better position HHS to make informed and timely decisions for UAC.

It therefore makes eight recommendations in its report. These include a call for CBP to develop and implement additional controls to ensure that Border Patrol agents accurately record family unit separations in data systems. GAO also recommends that ICE systematically track in its data system the family units ICE separates. Further, DHS and HHS should collaborate about information sharing for UAC. 

DHS and HHS concurred with the recommendations. DHS pointed out that Border Patrol issued a memo in January 2020 to clarify what information agents are to record for family unit members, potentially invalid family units, and subsequent separations, if applicable. 

DHS and HHS also both concurred with GAO recommendations that the agencies collaborate to address information sharing gaps identified in this report, and described plans to coordinate and reach agreement on information sharing practices. 

Zero-tolerance criticism

Earlier this month, the HHS Office of the Inspector General issued a report that detailed how interagency communication failures and poor internal management decisions impeded the ability of the HHS to provide prompt and appropriate care for separated children following the spring 2018 implementation of the zero-tolerance policy.

The issue of family apprehensions and separated children has dogged the current administration, exacerbated by the zero-tolerance policy, and some of the criticism has come from within. In an OpEd for Buzzfeed Rep. Bennie G. Thompson, Chair of the Committee on Homeland Security and Rep. Zoe Lofgren, Chair of the Judiciary Committee Immigration and Citizenship Subcommittee questioned claims that DHS has not lost any children. The Committees originally requested the GAO review.

Thompson and Lofgren wrote: “As chairs of the committees and subcommittees with jurisdiction on this matter, we have tried every avenue to obtain a full accounting of all child separations. Our efforts have been met with an intentional, unprecedented, and dangerous effort to impede Congressional oversight at every turn.”

“The only thing that is crystal clear is that there is much the Administration does not want us to know”, they continued and renewed their calls for Acting Secretary Wolf to “immediately provide our committees all of the documents we have asked for so we can understand the full consequences of the zero-tolerance policy.”

 

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Kylie Bielby has more than 20 years' experience in reporting and editing a wide range of security topics, covering geopolitical and policy analysis to international and country-specific trends and events. Before joining GTSC's Homeland Security Today staff, she was an editor and contributor for Jane's, and a columnist and managing editor for security and counter-terror publications.

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