On October 4, 2018, then-Homeland Security Secretary Kirstjen Nielsen asked the Homeland Security Advisory Council (HSAC) to examine the care of families and children in the temporary custody of Customs and Border Protection (CBP).
The HSAC, an executive-branch committee formed by a 2002 executive order, created a CBP Family and Child Custody Panel as a subcommittee of the HSAC to “provide findings and recommendations on the best practices of other federal, state and local organizations regarding care for families and children in CBP custody.”
The panel was directed to conduct border visits and interviews to observe and understand CBP’s “unique operating environment and infrastructure,” meet with experts to identify best practices for the processing and care of children in custody, and recommend any needed changes to CBP policies, procedures or training. Since its inception approximately five months ago, the panel increased its membership to include a practicing pediatrician who is a national expert on the maltreatment of children. Overall, the 10-member panel is politically bipartisan and composed of experts in the various areas under review.
HSAC’s emergency interim report, released April 16, says the unprecedented surge in family unit (FMU) migration from Central America is overwhelming U.S. border agencies and the immigration system and that this crisis is endangering children.
“In too many cases, children are being used as pawns by adult migrants and criminal smuggling organizations solely to gain entry into the U.S.,” the report states. Resources are currently absorbed in dealing with this crisis to the detriment of other border security missions, including apprehending migrants illegally seeking to evade detection, such as criminal aliens and those who pose a public safety or national security threat; uncovering instances of trafficking; fraudulent family relationships and other criminal activity among this population; and monitoring the border for drug smuggling and other contraband.
Through its investigations and research the panel found that after being held for several days at inadequate and overcrowded holding areas at U.S. Border Patrol (USBP) stations, most of the adults — provided they have a child with them and have stated that they fear returning to their country of origin — are issued Notices to Appear (NTA) at a later time before an immigration judge somewhere in the U.S. and then dropped at a local bus station or delivered to already overwhelmed nonprofit shelters. The NTA, combined with long delays in the adjudication of asylum claims, means that these migrants are guaranteed several years of living (and in most cases working) in the U.S. Even if the asylum hearing and appeals ultimately go against the migrant, he or she still has the practical option of simply remaining in the U.S. illegally, where the odds of being caught and removed remain very low.
By far, the major “pull factor” is the current practice of releasing with an NTA most illegal migrants who bring a child with them. The crisis is further exacerbated by a 2017 federal court order in Flores v. DHS expanding to FMUs a 20-day release requirement contained in a 1997 consent decree, originally applicable only to unaccompanied children. After being given NTAs, it is estimated that 15 percent of family units or fewer will likely be granted asylum. The current time to process an asylum claim for anyone who is not detained is over two years, not counting appeals.
The panel says CBP will need to reassign an increasing number of officers stationed at ports of entry to assist in handling the surge in FMU migration. Such migrations will continue until the cause is addressed, and the report says such a change requires emergency action by the U.S. government.
The panel makes several recommendations to bring about this change:
- Establish and staff three to four Regional Processing Centers (RPCs) along the border, scalable and with sufficient capacity to shelter all FMUs apprehended at the border and, among other things, provide safe and sanitary shelter, to include medical screening and care, credible fear examinations, vetting for identity and familial relationship, and evaluations for public health and safety, national security and flight risk.
- Resource and require transport from USBP stations and Ports of Entry (POEs) of all FMUs to an RPC, within 24 hours or less of apprehension.
- Recommendations 1 and 2 will require an emergency supplemental appropriation with funding to cover the costs of, among other things, erecting and staffing the RPCs, transportation to RPCs to meet the 24-hour requirement and providing healthcare for minors.
- Until the RPCs can be established, steps should be taken immediately to relieve the POEs and USBP of all tasks unrelated to their law enforcement mission. That is, all transportation, medical, feeding and caring for migrants should be the responsibility of non-CBP professionals who provide such services, whether by contract or applicable emergency government relief services. These are national security costs that should be included in the emergency supplemental budget request.
The panel also recommends that Congress enact emergency legislation to:
- Achieve faster asylum processing. At a minimum, legislation is needed to modify asylum procedures, at least temporarily, so that a hearing and decision can be provided to family members within 20 or 30 days. The panel is recommending that Congress immediately fund a substantial increase in immigration judges.
- “Flores Fix”: Roll back the Flores decision by exempting children accompanied by a parent or relative acting as the guardian of the child. DHS also should be given discretion to detain a close relative with a non-parent family member when this is in the best interest of the child.
- Amend Section 208 of the Immigration and Nationality Act (INA) to require that border crossers make asylum claims at POEs. Simultaneously, CBP will be resourced to begin processing all asylum claims initially presented at a POE and put an end to metering. This can and should occur promptly after this recommendation and the above recommendations are implemented.
- Amend the Trafficking Victims Protection Reauthorization Act (TVPRA) to permit repatriation of any child when the custodial parent residing in the country of origin requests reunification and return of the child. Currently, this is not permitted by the statute.
Emergency regulatory action is also recommended:
- Enable CBP to take photographs and biometrics of children of any age in order to stem the recycling of children at the border and to rapidly determine the legitimacy of parentage claims.
- Because the expansion of Flores is contributing to the flow of accompanied children, many who are of tender age, DHS should act promptly to limit it by emergency regulation until Congress acts.
To strengthen medical and child exploitation safeguards, the panel recommends:
- Office of Field Operations POEs and USBP stations should be supplemented by contracted medical and transport professionals.
Finally, the panel makes two recommendations for international action:
- Enter into a North America Family Protection Initiative with Mexico that includes the elements of a Safe Third Agreement.
- In cooperation with Guatemala, establish a secure shelter to process asylum claimants from Central America in Guatemala, proximate to the Guatemala-Mexican border.
The report notes that the influx of FMUs has increased dramatically over the past year by 600 percent. Over 53,000 FMU were apprehended last month alone by the Border Patrol, and at the current trajectory the panel believes the number of FMU apprehensions is likely to exceed 500,000 in Fiscal Year 2019.
Acting Secretary of Homeland Security Kevin K. McAleenan said the report made a series of important findings and recommendations to address the crisis that will form key elements of the department’s response in the coming weeks.
“The unprecedented surge in unaccompanied children and family unit migration is overwhelming our ability to provide humanitarian aid within our immigration system,” said McAleenan. “The reasonable changes proposed by this nonpartisan panel could dramatically reduce migration of family units from Central America, help eliminate dangerous and illegal border crossings, as well as improve the care of children who are brought on this harrowing journey. These recommendations are essential to secure our border and for the safety and welfare of children living in Central America and elsewhere who will continue to make this dangerous trek north.”