In 2014, President Barack Obama faced criticism for the way he handled an influx of unaccompanied minors crossing the U.S.-Mexico border. U.S. Border Patrol holding facilities became dangerously overcrowded. That led to concerning conditions for children waiting to be transferred to longer-term shelters run by the Office of Refugee Resettlement, part of the Department of Health and Human Services.
The 1997 Flores Settlement Agreement requires a basic standard of care for children in federal immigration custody, including “safe and sanitary” conditions and a 72-hour limit on stays in Border Patrol holding facilities.
Children were spending longer than 72 hours in facilities, due to the backup in the system, and the American Civil Liberties Union ultimately filed a lawsuit in 2015, alleging Border Patrol facilities held migrants in “inhumane and punitive conditions,” violating U.S. law.
However, Trump’s claim that the situation at the border is “much better” now than it was under Obama is misleading. Poor conditions at Border Patrol holding facilities have continued or worsened since 2014. More unaccompanied minors were detained in fiscal year 2019 than any other year on record, according to U.S. Customs and Border Protection. Questions remain about how the United States ended up in this crisis today in the first place.
While Obama made certain missteps when addressing the 2014 immigration influx, he ultimately mobilized the Federal Emergency Management Agency, opened influx shelters and formed initiatives across the Department of Homeland Security and HHS to prevent this type of crisis from recurring.
“There was then a major effort across the administration to identify what could be done to minimize the risk of this happening again,” said Mark Greenberg, former acting assistant secretary at the Administration for Children and Families.
An overwhelmed immigration system is not a new problem. But the way in which each administration responds makes a difference.
The Trump administration has faced an influx of migrants crossing the border in the spring. The Border Patrol has apprehended almost 76,000 unaccompanied children since October 2018. HHS said it is on track to care for the largest number of unaccompanied minors in the program’s history this fiscal year.
Government data released at the end of May revealed that hundreds of children had been held in Border Patrol facilities for longer than the legally-mandated limit of 72 hours. More than 250 children 12 or younger were in custody for an average of six days, according to a government official.
Immigration lawyers visited a Border Patrol facility in Clint, Tex., in mid-June and reported appalling conditions. They asked a federal judge to order immediate inspections of the facility, claiming the conditions and lengths of stay violated the Flores agreement. Hundreds of children were moved out of Clint after these reports.
“I have sued across three administrations on behalf of families in detention centers. I don’t think the conditions have ever been great — they’ve been pretty uniformly terrible,” said Elora Mukherjee, a Columbia law professor and attorney. “In the Trump years, it’s been much more concerning.”
Notably, seven children have died within the past year while they were in or recently released from federal immigration custody. There had not been any reported child deaths in nearly a decade before, according to Mukherjee.
The Trump administration claims a lack of bed space in Office of Refugee Resettlement shelters caused the backup at Border Patrol holding facilities. However, according to data released by the Department of Health and Human Services, the average occupancy rate per month at ORR shelters never reached 100 percent capacity.
The administration has also argued that a lack of funding, blocked by Democrats, exacerbated the crisis. Congress ultimately passed a $4.6 billion emergency border aid bill at the end of June. However, policy changes that relieved the burden on the system occurred before any money was allocated to the border. DHS reported that the number of unaccompanied children in Border Patrol custody dropped from nearly 2,800 on June 7 to less than 1,000 on June 25. Congress passed the appropriations bill on June 27.
Some immigration lawyers believe Trump’s immigration policies helped compound the crisis. In April 2018, DHS and HHS entered a memorandum of agreement (MOA), requiring the departments to share information about unaccompanied children and their potential sponsors.
Critics contend this policy decreased the number of sponsors coming forward because they feared arrest or deportation. Fewer potential sponsors meant more children spent longer periods of time in government custody, further overwhelming the system.
“This was, in my view, an enormously destructive policy to pursue,” Greenberg said. “Because the whole system depends on children who arrive at the shelters saying who their parent or relative is.”
Heidi Altman, director of policy at the National Immigrant Justice Center, said the policy “dramatically increased the length of stay and prolonged kids’ detention because sponsors were afraid to come forward. They were afraid they’d be detained and deported because that information was shared with [U.S. Immigration and Customs Enforcement]. It put immense pressure on the ORR system.”
A Washington Post investigation found the memorandum of agreement was also an intentional deterrent to keep child migrants and their parents out of the country. Interviews and obtained documents showed the administration knew such a backlog was a possible consequence of the MOA but proceeded with the policy anyway.
“The government knew the moves would strain child shelters, according to documents and current and former officials, but it was aimed at sending a message to Central American migrants: Coming to the United States illegally has consequences.”
“According to current and former government officials, and emails and memos detailing the Trump administration’s strategy, it is clear they knew that without enough beds in government shelters, children would languish in Border Patrol stations not equipped to care for them, making the government a target of lawsuits and public criticism — both of which occurred.”
“I believe this administration is intentionally creating an overcrowding and chaotic situation to deter people from coming in. What we’ve seen is that it doesn’t work,” said Michelle Brané, senior director of the Migrant Rights and Justice program at the Women’s Refugee Commission.
The deterrent was not successful in the way the administration hoped as unaccompanied minors continued to cross the border in record numbers. The administration ultimately started walking back components of the MOA, most importantly no longer requiring fingerprinting from potential sponsors. These policy changes helped release children from ORR shelters and alleviate the backup in the system.
The administration claimed the MOA was created for child safety, to ensure migrant children weren’t being released to human traffickers or child abusers. However, they started to roll back the fingerprinting requirement for sponsors because it was clear the mandatory background checks were finding the necessary red flags that fingerprints would find.
The White House did not respond to requests for comment. HHS’s Administration for Children and Families declined to respond to our specific questions about bed space and the memorandum of agreement but did comment on how the administration has handled the care of unaccompanied minors:
“All agencies have continued to be engaged in close collaboration to ensure a coordinated and effective response to changes in migration flows. The number of unaccompanied alien children apprehended are a symptom of the larger problem, namely a broken immigration system that encourages them to make the hazardous journey. Unaccompanied alien children are particularly vulnerable to human trafficking, exploitation and abuse. This is why HHS joins the President in calling on Congress to reform this broken system. Despite placing UAC with sponsors at historically high rates, HHS was working diligently to expand its bed capacity (at the time in question) to ensure that it could keep pace. During the months of May and June, HHS did continue to receive UAC from DHS for placement in shelters; however, the program was functionally at capacity when the system was overwhelmed by 10,000 children in May alone. DHS was a crucial partner during these heavy influx months as the departments faced an incredibly challenging mission brought on by the consequences of a broken immigration system.”
CBP also responded to lawyers’ reports of overcrowding and poor conditions in holding facilities.
“U.S. Customs and Border Protection (CBP) leverages our limited resources to provide the best care possible to those in our custody, especially children. DHS and CBP leadership noted numerous times in testimony to Congress and in numerous media engagements that our short-term holding facilities were not designed to hold vulnerable populations. CBP works closely with our partners at the Department of Health and Human Services to transfer unaccompanied children to their custody as soon as placement is identified, and as quickly and expeditiously as possible to ensure proper care.”
The Pinocchio Test
Conditions at Border Patrol facilities were problematic in 2014 under Obama, but Trump has repeated a false narrative about conditions now to downplay an overburdened system. Overcrowding and longer lengths of stay in Border Patrol facilities have continued and pose dangers to children’s health.
The administration’s explanation for the cause of the chaos at the border is also misleading. It appears the Trump administration knew the memorandum of agreement could create such a backlog but proceeded with the policy to intentionally deter child migrants from coming to the United States.
President Trump earns Four Pinocchios.
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