How did we end up with kids in cages? We put them there, across multiple administrations, creating a politicized immigration and asylum system that constrains better options.
It’s time to stop saying this isn’t who we are and it’s time to start looking beyond the hysteria.
Bill Clinton’s 1996 Illegal Immigration Reform and Immigrant Responsibility Act set new records for immigrants detained. Next up was George W. Bush’s 2005 Operation Streamline, a zero-tolerance plan to prosecute all illegal entrants. But to avoid the logistics and negative optics, the program made exceptions not written into the law for adults traveling with children. Nature finds a way, and more and more economic migrants arrived with somebody’s child in hand as a Get Out of Jail Free card. Fewer kids in cages, but more illegals.
Obama initially prosecuted only those found illegally entering more than once. Caught off guard by an influx of asylum seekers from Central America, his administration in 2014 established then-legally permitted family detention centers to hold parents and children—potentially indefinitely—in cages as a means of deterring others. And if kids arrived without their parents or in the hands of human traffickers or if their parents were criminally dangerous, they were held alone in cages. The program ended only because of a 2016 court decision ordering the release of most of those hostage families and largely prohibiting family detention facilities. Adult men, women, and children would be caged separately in the future.
Trump set out in April 2018 to prosecute every illegal crosser, first or tenth time, with or without kids, the letter of the law. There had been a growing rise in the number of people from the Northern Triangle (Honduras, Guatemala, and El Salvador) and from Mexico. For example, the border patrol detained 6,405 unaccompanied children in May 2018, up from 4,302 in April. In comparison with May 2017, the number of unaccompanied children soared by 329 percent, and parents migrating with kids as families surged by 435 percent in 2018.
By law, today, children and adults cannot be detained together, though it was allowed during the Obama years and earlier under the Flores Settlement. Most parents arrested at the border are criminally charged with illegal entry. Due process laws do not allow children to be kept with their parents because the child is not being prosecuted. Overall, interpreting what these laws say must be done versus can be done to end up at what should be done draws some very fine, politically motivated legal lines.
What is clear is that by ending the various catch-and-release and ignore-and-don’t-catch policies of his predecessors, Trump triggered the next variation of an old problem. With no legal avenue to immigrate for work, and with border enforcement stopping many from simply walking north and blending into the estimated 11 million illegals already in the U.S., a vast number of economic migrants now ask for asylum. They are aided by for-illegal-profit asylum cartels, staff from a Democratic congresswoman’s office, and volunteer American lawyers.
Asylum applicants must demonstrate that, if sent home, they would be persecuted on account of their race, religion, nationality, political opinion, or social group. The definition of those five protected grounds has varied based on American domestic politics. For example, since 1994, LGBT status has been a possible grounds of asylum. Victims of domestic violence were granted consideration under the Obama administration, only to be rolled back under Trump. However, asylum has never and was never intended to stretch over security or economic situations affecting blanket-like most everyone in a country. “Wanting a better life” has never been grounds for an asylum claim.
And yet economic immigrants without legitimate claims to asylum have long taken advantage of slow processing by American authorities. A Mexican man caught on the border who says he came just to work may be sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case, however frivolous (there are potential expedited processes).
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act requires those seeking asylum to be detained while their cases are processed. But for logistical and political reasons, prior administrations simply released most asylum seekers into American society to wait. Asylum seekers become eligible for work authorization if their cases have been pending for more than 150 days, as almost all do. Trump has directed that the letter of the law be followed, ending this catch-and-release system. He has also negotiated for many asylum seekers to wait out their cases in Mexico instead of working while in the U.S.
The problem is that the backlogs are unresolvable. Affirmative asylum seekers, such as most of those now at the border, apply administratively through the Department of Homeland Security. The number of such pending cases as of January 2019 was 325,277, more than 50 times higher than in January 2010. Defensive seekers are those applying for asylum once facing deportation or removal for some reason, including being denied under an earlier affirmative application. These cases go through the courts. As of July 2018, there were over 733,000 pending. The average wait time for a hearing was a staggering 721 days.
The approval rates for asylum claims are low, and always have been. The recent rate for Mexican claimant approvals was 12 percent, for Salvadorans 21 percent, Hondurans 22 percent, and Guatemalans 26 percent. Those countries account for more than 40 percent of all asylum applications, and have for some time. The high refusal rates, while up under Trump, are not at odds historically. In 1984, only 3 percent of asylum cases from El Salvador and Guatemala were granted, even as U.S.-sponsored wars raged there. Approval rates for all nationalities over the past decade average only 28 percent, skewed high over recent years by waves of cases designed to pander to American voters (Chinese pro-democracy applicants) and evangelical voters (Chinese anti-One Child Policy applicants).
But as we talk, there are still kids in cages. None of this is to defend the conditions in detainee camps. Those are a result of a sudden shift in implementation of immigration law coupled with a lack of infrastructure planning, driven by a president who impulsively wants to be seen as “tough” facing down a problem, all backed by an asylum system no longer suited for the conditions imposed upon it. Conditions can be quickly improved: the House just voted $4.6 billion to do that.
But we need also acknowledge the dangers in 2019 of hysteria, driven by media and progressive politicians exploiting the situation to paint themselves as liberating another concentration camp on the road to Berlin, when what’s really needed are hygiene kits and child care workers. And no whataboutism. Under Obama, we tolerated kids in cages. So why shouldn’t we under Trump?
There are even deeper dangers. Progressives don’t want to fix Trump’s logistical mistakes (AOC and others voted against the recent humanitarian funding increases). The camps must not be made more humane, they say, they must be closed. Deportations must not be limited, they must be ended by decriminalizing illegal entry. Free medical care for illegal immigrants. Asylum to economic migrants. Abolish ICE. Open borders.
Meanwhile, Trump’s immigration policies resonate with important sectors of the public. Some 60 percent of likely voters support efforts to “prevent migrants from making fraudulent asylum claims and being released into the country.” This does not grow out of racism or white supremacy (Latinos support much of the Republican immigration agenda), though using those words is an easy way to blame people impacted by decades of imposed change and delete them from the conversation over how to do better.
What’s driving all this is elites’ imposition of an uncounted number of illegal immigrants with unknown skills and unknown criminal backgrounds. Do we get the guy with the 4.0 GPA or the one who committed 4.0 murders? We are destined—required—to take the bad with the good, scatter them around the country, and hope for the best.
So when economic turmoil in Mexico during the early 1990s pushed migrants north, just as war in Central America drove them in the 1980s and gang violence does today, in America there was no plan. Tired, consumed, with resources stretched, there was a backlash building that Trump sensed and acted on. As he was unprepared at the border and told DHS to make do, America for decades has been unprepared and told to make due. A de facto open border similar to 2015 Europe imposed by progressives would have the same effect here as there, leading to a new, even more conservative backlash.
The peak year for legal immigration to America was 1907. Your great-grandfather entered an agricultural and rapidly industrializing nation desperate for workers with no time to waste putting kids in cages. To get them out today, we need more than old-timey nostalgia and modern outrage. We need a 21st-century asylum and immigration policy.
Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan.