DHS Publishes Bizarre Request for Public Input on How to Address a Non-Issue at the Border

FAIR Take | December 2021

On Thursday, the Biden administration managed to inspire less confidence in its ability to implement an immigration policy when it solicited public input on how the Department of Homeland Security (DHS) can avoid separating families on the border. The problem with the solicitation, specifically, is that DHS already has policies in place to prevent family separation. The crowd-sourcing request, rather, signals that DHS leadership is unable to reconcile its nonenforcement policies with its duty to comply with federal law and deter child trafficking across the border.

The Trump administration canceled its “zero tolerance” policy in June 2018, just six weeks after it was implemented. This policy directed prosecutors to enforce existing federal laws that criminalize illegal border crossings.  As a result of the prosecutions, DHS was required to place any minor who accompanied an adult charged with this crime into U.S. Department of Health and Human Services (HHS) custody. Separation was necessary because federal law specifically prohibits the detention or confinement of minors in any institution in which the minor would have “regular contact with adult persons convicted of a crime or awaiting trial on criminal charges.”

Following the policy’s enormous backlash and rapid cancelation, the Trump administration quickly implemented policies to ensure that family units would remain together while in DHS custody or be released together as a unit. The Biden administration doubled down on this objective, mostly as a public-relations attempt to distinguish itself from the prior administration even though its family-unity policies remain largely the same, by creating a formal task force to reunite any minor who had been left behind by an alien prosecuted during the short-lived policy. (As an aside, the task force has been largely ineffective at reuniting any families who had not already been reunited by the previous administration.)

With this context in mind, DHS’s request for public input reads like an embarrassing admission that at almost a full year into this crisis, DHS leadership has no functional plan with regard to how to manage the border and has resorted to crowd-sourcing ideas from the public. If the Biden administration wanted to end the unlawful trafficking of minors across the border and the enormous administrative complications that result from encountering massive numbers of family units, however, it already has the tools to do so.

First, maintaining the Migrant Protection Protocols (MPP), better known as the “Remain in Mexico” program, would go a long way in deterring illegal border crossings by illegitimate asylum seekers. MPP requires certain illegal border crossers to wait in Mexico pending their immigration court proceedings instead of being released into the interior of the country.

Second, DHS must expand its detention capacity at the border. Currently, DHS only has just three family residential centers (FRCs), with a combined detention capacity of just 3,326 people. To put this in perspective, U.S. Customs and Border Protection encountered over 42,726 family units in the month of October alone.

In order to expand its detention capabilities, DHS must simultaneously push to end the 1997 Flores settlement agreement through rulemaking or litigation, or alternatively by supporting Congressional action.  The 1997 Flores settlement prevents DHS from detaining family units for longer than 20 days, which in today’s world is no longer sufficient time to receive an immigration court hearing.  The practical result is most family units who cross the border illegally are released from custody and often disappear into the interior of the country without ever appearing before an immigration judge. 

Most importantly, DHS must commit itself to enforcing the nation’s immigration laws.  Disappointingly, the Biden administration’s policies have signaled a determination to do just the opposite. In DHS’s most recent non-enforcement policy, Secretary Mayorkas made clear that an alien’s unlawful immigration status alone would be insufficient to trigger any immigration enforcement action. DHS also recently announced that the U.S. Customs and Immigration Enforcement (ICE) will not engage in worksite enforcement and has even severely limited when and where its officers may initiate enforcement actions against cases that fall within the Department’s narrow priorities.

The Biden administration’s refusal to address any of the loopholes that encourage the trafficking of minors into the United States, coupled with its determination to terminate or hamstring every deterrence policy put in place by the previous administration, has resulted in the worst border crisis in U.S. history. FAIR will submit a comment in response to DHS’s request for public input demanding that DHS eliminate the pull-factors it has created and highlighting the road map to end the border surge and ensure that family separation never occurs.