How Misguided Policy Attracts Unaccompanied Alien Children to the Southern Border

FAIR Take | April 2023

Over the last two years, the Biden Administration has purposefully instituted one bad policy after another to dismantle our nation’s border security and promote its open-borders agenda. One of the most tragic results of today’s unprecedented border crisis is its toll on children and families. This article will discuss the problems that led to the increase in unaccompanied alien children (UACs) who illegally enter the United States, and how the Biden Administration is making history and breaking records, ignominiously.

The Biden border crisis has led to a dramatic spike in the number of UACs arriving at our southern border since January 2021. During each month of the Trump Administration, an average of 3,966 UACs were apprehended by Border Patrol between ports of entry. By contrast, each month under President Biden has seen an average of 13,199 such apprehensions, a 333% increase. Total UAC apprehensions between ports of entry jumped from 30,557 in Fiscal Year 2020 to 144,834 in Fiscal Year 2021 and 149,093 in Fiscal Year 2022 – and these figures don’t even account for children among the 1.2 million known gotaways (aliens who Border Patrol has seen but could not apprehend). The table below illustrates the sheer magnitude of the recent UAC spike under Biden’s open-borders policies.

This influx turns Border Patrol into babysitters, diverting vital resources from interdicting contraband crossing the border. In some cases, UACs themselves are used as drug mules, and some UACs are adult criminals who give a false age to take advantage of lax enforcement policies. The National Border Patrol Council has pinned a spike in agent suicides largely on what the agents see happening to vulnerable children.

The crisis is fueled by many factors, including broken asylum laws that encourage gaming the system, gutted immigration enforcement, political pressure on front-line agents, lenient treatment of illegal aliens, and relentless litigation by open-borders groups. While many negative policy changes occurred within days of Biden’s inauguration, the crisis surrounding UACs has been brewing for decades.

In fact, we can trace the problem back to 1985, when 15-year-old Salvadoran Jenny Lisette Flores was apprehended near San Ysidro, California, and detained for two months in allegedly substandard conditions at a Pasadena hotel that authorities had converted into a detention facility. Attorneys filed a class-action lawsuit on behalf of Flores and three other adolescents which, according to the original complaint, sought to improve detention conditions and end a policy (which the government denied existed) that parents or guardians “surrender to…agents for interrogation and deportation” as a condition of UACs’ release on bail. The plaintiffs’ lead attorney, Carlos Holguín, explained to NBC in 2014 that they were trying to “do away with…the children being used as bait to arrest the parents.”

About ten days after the suit was filed, U.S. District Judge Robert Kelleher ordered the INS to release Flores to an aunt and uncle. Attorneys then sought a nationwide injunction to apply the same principles applied in releasing Flores to all children detained by INS and “approve similarly situated responsible adults” (besides parents or legal guardians) to take custody of them where necessary.

In 1988, the Immigration and Naturalization Service (the predecessor to today’s immigration agencies) adopted a new federal regulation to expand possibilities of release. The new regulation allowed for release, “to (i) a parent; (ii) a legal guardian; or (iii) an adult relative (brother, sister, aunt, uncle, grandparent) who are not presently in INS detention,” unless their detention was required to secure their appearance in immigration court or to ensure their safety. If all possible custodians were in INS custody, the regulation allowed for simultaneous release of the child and custodian “on a discretionary case-by-case basis.” Finally, in “unusual and compelling circumstances” the children could be released to any other adult.

The adoption of the 1988 regulation may seem like win for the Flores plaintiffs, but they continued their legal battle anyway, alleging, among other things, that detaining alien minors at all violates “substantive due process” since they have a “fundamental” right to “freedom from physical restraint.” Their case ultimately went all the way to the Supreme Court, which in 1993 delivered a victory for the government by a vote of 7-2. In the majority opinion, Justice Antonin Scalia wrote, “Where a juvenile has no available parent, close relative, or legal guardian, where the government does not intend to punish the child, and where the conditions of governmental custody are decent and humane, such custody surely does not violate the Constitution.” (Reno v. Flores, 507 U.S. 292 (1993)).

Following the Reno v. Flores decision, activists continued to allege substandard detention conditions at INS detention facilities. For instance, in 1996, Human Rights Watch conducted a series of interviews and investigations at INS facilities in California and Arizona as part of a “Children’s Rights Project,” and their findings were highly critical of the government.

Continued pressure from these activists led INS Commissioner Doris Meissner to sign the Flores Settlement Agreement in 1997. The agreement stipulated that the government would release children “without unnecessary delay” to (in order of preference) parents, legal guardians, other adult relatives, other adults designated by parents/guardians, a “licensed program” willing to accept custody, and, finally, any other adult or entity that wants custody if there appears to be no other alternative. The agreement further stipulated that the INS would place children in the “least restrictive” setting appropriate to the alien’s age and needs, and agreed to implement rigorous standards for the care, treatment, and transportation of alien minors in custody.

The Clinton Administration argued the Flores Settlement, which is a consent decree with the force of law, was necessary to put to rest over a decade of ongoing litigation that had begun in 1985. To this day, compliance with its terms is monitored by the U.S. District Court for the Central District of California. Importantly, however, amendment to the agreement adopted in 2001 stipulates it will terminate 45 days after the federal government publishes final implementing regulations. The Bush Administration did not act to adopt regulations implementing Flores, and during his Presidency, Senator Dianne Feinstein (D-Ca.) sought to pass legislation to codify Flores so that it could not be rolled back. 

In December 2008, Congress partly codified the Flores Settlement with passage of the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA). Section 235 of the TVPRA, which uses language from Senator Feinstein’s 2007 bill, is ironically entitled “Enhancing Efforts To Combat The Trafficking Of Children.” In effect, however, this section creates a mass catch-and-release policy for children.

Pursuant to Section 235, once a UAC is apprehended, the government first must determine, within 48 hours, whether the child meets the legal definition of a UAC. That means an alien who is: (1) under age 18; (2) has no lawful status; and (3) has no parent or guardian in the U.S. available to take custody and care for them. While making this determination this may sound simple, it becomes an immense challenge with an understaffed Border Patrol facing a deluge of nearly 20,000 UACs each month – and often without reliable documents to ascertain age or establish the presence of a parent/guardian. In many cases, Border Patrol has no choice but to take an alien’s claims at face value – leading to rampant fraud and abuse.

Once UAC status is determined, the government must transfer them within 72 hours to the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR) , which then works to place them in “the least restrictive setting that is in the best interest of the child.” The TVPRA carved out an exception for UACs from contiguous countries, of which there are only two: Canada and Mexico. For UACs from those countries, the government must further screen the child to determine whether he or she has been, or is likely to be if returned, “a victim of a severe form of trafficking in persons.” The government must also determine whether the UAC has a “credible fear of persecution” if turned back to their home country. If either case is found to be true, he/she enters the same stream of other UACs: to HHS and placement with a sponsor.

Only in the limited circumstances where the UAC is a native or last habitual resident of Canada or Mexico, not the victim or likely future victim of human trafficking, and not facing likely persecution in their home country (in other words, not an asylum-seeker) can they be returned to Canada or Mexico.

All other UACs who are apprehended are released through HHS. Importantly, TVPRA Section 235 prohibits HHS from placing a child into any sort of secure holding facility “absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.” If a child is placed in a secure facility, such a placement must be reviewed on a monthly basis to determine if it remains warranted.

As part of their release, UACs are placed into formal removal proceedings under section 240 of the Immigration and Nationality Act (INA) (8 U.S.C. 1229a). In practice, however, very few UACs are removed. In fact, since the beginning of FY 2021, the Department of Homeland Security has deported only 0.1% of the roughly 345,000 total UACs encountered. Under the TVPRA, UACs have the privilege of being able to file so-called “affirmative” asylum applications with U.S. Citizenship and Immigration Services (USCIS), instead of “defensive” applications before the Immigration Judge. In many cases, immigration courts will administratively close the removal proceeding for USCIS to adjudicate the asylum claim.

As a result of the TVPRA’s favorable treatment of aliens from non-contiguous countries, the number of UACs from Central America soared. This table from the Congressional Research Service illustrates the trend:

As if the Flores Settlement and TVPRA weren’t bad enough, the District Court overseeing implementation of Flores made it immeasurably worse in 2015. That year, Judge Dolly Maizie Gee, an Obama appointee, ordered the release of at least one parent or legal guardian along with a detained child, if detained together. Thus, no longer did Flores apply just to UACs, but also to so-called “family unit aliens” (FMUAs), or groupings of at least one alien child and one alien adult parent or guardian. Moreover, Judge Gee required that such releases must occur within just 20 days. In August 2019, President Trump proposed a federal rule effectively ending the Flores settlement and allowing for longer detention of family units, but it was struck down by Judge Gee the next month – before it could go into effect.

The Flores Settlement Agreement, the TVPRA, and ensuing litigation have created a strong incentive for illegal immigration and abuse of our asylum laws. Parents are sending their children alone through Central America and Mexico to cross illegally into the U.S., or, even worse, paying the drug cartels or “coyotes” up to $20,000 a head to smuggle them over the border. This adds up to an estimated $13 billion in annual human-smuggling profit for cartels, according to a New York Times report. That’s on top of drug-trafficking revenue, which the Department of Homeland Security (DHS) estimated in 2010 totals $19 to $29 billion a year. Families are also incentivized to make the perilous journey together knowing they will likely be released thanks to Judge Gee’s misguided 2015 decision. After their release, many poor children fall into trafficking or hard manual labor as a means to pay back the smugglers for getting them over the border. Cartels enjoy control of vast swaths of the border as agents’ time, attention, and resources are diverted to the time-consuming processing of UACs and family units.

In short, the Flores and the subsequently adopted TVPRA have proven to be an unmitigated disaster, but it doesn’t have to be this way. Now is the time to revisit the Flores Settlement and rectify years of misguided policy and harmful court decisions. FAIR urges Congress to overturn Flores and shut off magnets of further illegal immigration and bogus asylum claims – for the safety of U.S. citizens and migrants alike.