WASHINGTON—Cross the border into the United States with a child, claim asylum, and you’re home-free.
That’s the message smugglers and migrants are hearing, according to the Department of Homeland Security (DHS).
“Smugglers and traffickers understand our broken immigration laws better than most and know that if a family unit illegally enters the U.S., they are likely to be released into the interior,” DHS spokesman Daniel Hetledge said in a Sept. 12 statement. “Specifically, DHS is required to release families entering the country illegally within 20 days of apprehension.”
The number of family units crossing the southwest border illegally and claiming asylum jumped 38 percent in August over the previous month, according to the latest numbers published by Customs and Border Protection (CBP).
More than 12,700 individuals who were part of a family unit (at least one adult and one child) were apprehended by Border Patrol after crossing the border in August. That’s 3,500 more than in July.
“It’s really telling that the numbers have increased so much in a one-month period, during the time when this was in the news so much,” said Jessica Vaughan, director of policy at the Center for Immigration Studies. “The court-imposed catch-and-release policy is a major enticement for people to come here.”
CBP said the increase in family units is “a clear indicator that the migration flows are responding to gaps in our nation’s legal framework.”
“We know that the vast majority of family units who have been released—despite having no right to remain in any legal status—fail to ever depart or be removed,” Hetledge said.
He said that through the third quarter of fiscal 2018, only 1.4 percent of family units have been repatriated to their home country from non-contiguous countries such as El Salvador, Guatemala, and Honduras. Individuals from those three countries make up almost 98 percent of family units apprehended.
At issue is a court judgment dating back to 1997—called the Flores Settlement Agreement—that mandates immigration authorities to release family units from custody after 20 days. On top of that is a 2015 Obama-era amendment that says children can’t be detained in adult facilities—forcing either separation or release.
That means the administration can’t prosecute illegal border crossers without separating the adults and children—which is what started happening in April when a “zero tolerance” policy was reinvigorated.
An outcry ensued when around 2,500 children were temporarily separated from adults who were in custody pending their cases.
Trump issued an executive order on June 20 to stop the separations, and a court injunction gave the government less than a month to reunite the families.
The 2,500 children represented about one-quarter of the number of family units that entered each month in the last several months. Most have since been reunited; however 14 of the adults were discovered to not have a familial relationship with the child or were convicted criminals, for crimes including rape, child abuse, and kidnapping.
Without the ability to separate adults for prosecution, authorities have no choice but to release them without consequence.
“This is exactly what even the Obama administration lawyers predicted when the judge ruled back in 2015 that they could not detain kids with their parents,” said Vaughan.
She said the continuation of catch-and-release is a “major motivation” for illegal entry.
“The family-separation uproar was not really representative of all cases, and it certainly didn’t seem to have deterred many people from coming,” Vaughan said.
Trump’s executive order also resulted in Attorney General Jeff Sessions requesting amendments to the Flores agreement. One would allow Immigration and Customs Enforcement (ICE) to detain families together in ICE family residential facilities, and the second would allow ICE to detain families longer than 20 days.
The amendments would enable an immigration case to be adjudicated while the aliens are in custody, which takes a median of 40 days, rather than years if they’re released into the country.
It also means that those who don’t qualify for asylum (usually around 80 percent), or some other immigration benefit, can be readily repatriated.
On July 9, the U.S. District Court for the Central District of California, which issued the Flores order, declined to amend the 20-day provision.
Meanwhile, on June 28, the Defense Department said it had been asked by DHS to help house and care for “an alien family population of up to 12,000 people,” a Defense spokesman said.
The total number of family units apprehended by Border Patrol so far in fiscal 2018 is almost 90,000.