Moving Away from Crisis Management: How the United States Can Strengthen Its Response to Large-Scale Migration Flows

On November 15, 2018, CMS hosted an event on access to justice, due process and the rule of law to honor the legacy of Juan Osuna, a close colleague and friend who held high-level immigration positions in four administrations over a 17-year period. Prior to his government service, Mr. Osuna served as a respected editor and publisher and a close collaborator with many civil society organizations. As a follow-up to its November 15^th gathering, CMS will be posting and publishing a series of blogs, essays, talks, and papers on the values and issues to which Mr. Osuna devoted his professional life, and ultimately compiling them as part of a CMS special collection in his memory.

EXECUTIVE SUMMARY [1]

Migration from Central America is not new phenomenon. Political unrest, natural disasters, family unification, and economic hardship have led to large-scale migration from Central America since the 1980s. Over the last decade, record numbers of families and unaccompanied children from Central America have sought protection and refuge in the United States and elsewhere. Emigration from El Salvador, Honduras, and Guatemala comprise almost 90 percent of total US immigration growth from Central America since 1980 (Lesser and Batalova 2017). In the past decade, the Northern Triangle has continued to experience challenging socioeconomic and political conditions, such as the rise of criminal groups and drastically increased homicides, which have driven many families and unaccompanied children to flee (Hiskey et al. 2016; see also Lesser and Batalova 2017).

This paper reviews the response of the US government to the growth in migration from Central America’s Northern Triangle states from 2011 to 2016. It also critiques the extreme border policies of the Trump administration, while recognizing that the failure of previous administrations to enact strategic, long-term changes in the US immigration system laid the groundwork for these policies. Finally, it reviews some of the lessons learned during the Obama administration on the need for a resilient and reformed immigration system. The paper recommends:

• The creation of a non-adversarial asylum system for all asylum seekers.
• The establishment of a robust in-country refugee processing program.
• Comprehensive government training to address the special needs of child migrants.
• The elimination of family detention.
• Expanded alternatives to detention.
• Reform of the immigration court system.
• Creation of a central position to coordinate US immigration policies.

These proposals are achievable within the existing legal structure. They require only the will and creativity of the government, in partnership with nongovernmental organizations.

I. The Federal Government’s Evolving Response to Central American Migrants: 2011 – 2016

During 2010 and 2011, senior leaders at the US Department of Homeland Security (DHS) were aware of slight increases in the apprehensions of unaccompanied children at the southern border. Numerous reports examined DHS’s treatment of unaccompanied children (OIG 2010a,b; Cavendish and Cortazar 2011). Following on their recommendations, DHS sought fora in which its components could work together to address the needs of the increasing number of children apprehended at the border. The focus was on treating unaccompanied children appropriately from apprehension through their transfer to the US Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR).

In July 2011, a DHS cross-component working group established by the DHS Secretary’s office began to meet regularly, collaborate, and coordinate services to unaccompanied children. The DHS Office of Civil Rights Civil Liberties, Office of Policy, and one of the DHS Secretary’s senior counsels co-chaired the working group. Representatives from the major components were active in the working group, including the US Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), DHS Office of General Counsel, Federal Law Enforcement Training Center, Office of Immigration Statistics, and the Office of the Citizenship and Immigration Services (CIS) Ombudsman.

The working group initiated a number of projects that involved all DHS components. For example, CBP launched a “Dangers of Journey” media campaign in Central America targeted at educating migrant children and their families about the dangers of migration to the United States. A collaboration between DHS components led to the production of a video for unaccompanied children in Border Patrol custody, which focused on helping children understand their rights and potential eligibility to remain in the United States. The working group also examined data collection and sharing amongst the participating institutions. Because each of the DHS components maintains their own data systems, data is often not shared effectively and efficiently, which leads to repetitive data collection and gaps in information. The ultimate (unrealized) goal of the working group was to ensure a smooth flow of information that followed an unaccompanied child through the immigration process. In addition, ICE established a comprehensive training for all DHS employees who encountered unaccompanied children.

In early 2012, the government began to see a significant rise in child migration. Immigration of unaccompanied children had trended slightly upwards in 2011, but the sharp increase in 2012 came as a surprise. As HHS stated in a FY 2012 report to Congress, it faced “a rapid, unanticipated, and unprecedented increase in unaccompanied alien children (UAC)[2] referrals from DHS” (ORR 2014). In fiscal year (FY) 2011, the Border Patrol apprehended a total of 16,067 unaccompanied children compared to 24,481 in FY 2012 (US Border Patrol 2018a). While the government was not prepared for the rapid increase in apprehensions of unaccompanied children, having the DHS cross-component working group allowed the agency to shift its focus on coordination with ORR, the US Department of Defense (DOD), and the White House to address the influx, while putting on hold other longer-term projects. During this period, interagency representatives met on a near daily basis.

By April 2012, ORR’s capacity to house unaccompanied children was severely tested. The state-licensed shelters in the southwest were at capacity, ORR was unable to accept additional children (Fernandez 2012), and ICE began transporting children to ORR facilities in other parts of the country via charter flights on “ICE Air” (Fox News 2016; Shoichet 2017). However, the need for more ORR bed space became critical. Without additional space, children were forced to stay for extended periods in Border Patrol stations not designed for long-term stays, particularly not for children. These facilities lack kitchens or showers. Children sleep in jail cells with no privacy. Since the facilities are designed for short-term stays, they do not offer comprehensive medical screenings, and they are not prepared for outbreaks such as chickenpox. These deficiencies are one of the reasons that the Trafficking Victims Protection Reauthorization Act requires children to be transferred to ORR within 72 hours.[3] Given the challenges ORR faced in rapidly expanding shelter capacity, the government turned to federal facilities that ORR could convert into short-term emergency housing, and opened Lackland Air Force Base in San Antonio, Texas (Fernandez 2012).

The increase in apprehensions of unaccompanied children did not abate after the spring and summer of 2012. Informal government forecasting indicated that unaccompanied children would continue to migrate to the United States, nearly doubling every year. The government needed to prepare for a sustained influx in migration from Central America and find ways to better adapt to recurring spikes in apprehensions of vulnerable populations. As a result, the DHS cross-component working group developed a Concept of Operations (CONOPS), led by CBP, which put a plan in place for addressing operational challenges related to the timely transfer of unaccompanied children.

In July 2013, DHS Secretary Janet Napolitano transitioned out of her position, her staff moved to other positions, and the working group disbanded. Secretary Jeh Johnson assumed his position as the DHS Secretary in December 2013.

Through mid-2013, DHS continued to forecast significant growth in unaccompanied children, and the government saw a 43 percent increase in these arrivals from FY2013 to FY2014 (US Border Patrol 2018a). However, it did not anticipate the massive numbers of family groups, which started to arrive in the spring of 2014. Between FY 2013 and FY 2014, the Border Patrol saw a 78 percent increase in apprehensions of family units (US Border Patrol 2018b).

In response, President Barack Obama directed the establishment of an interagency Unified Coordination Group led by the Federal Emergency Management Agency (FEMA) on June 2, 2014 (DHS 2014). The government adopted an “aggressive deterrence strategy” (Nakamura 2014). To implement this strategy, an interagency working group was formed that included representatives from several government agencies, including DHS, DOJ, HHS, the US Department of State (DOS), and the Office of Management and Budget (OMB). The interagency group explored a series of potential strategies, including family separation, which it rejected. The rapid pace of response required a new system of expeditious decision-making based on whatever (imperfect) information was available.

One of the hallmarks of the “aggressive deterrence strategy” was the return of family detention centers. Until 2009, ICE had two family detention centers, T. Don Hutto Residential Center and the Berks Family Residential Center. On August 6, 2009, the Obama administration announced the closure of the Hutto facility and ordered the release of all the families in the facility (Chan and Obser 2017).

On June 20, 2014, the White House announced an increase in detention for arriving families, and on June 27, 2014, the Artesia Family Detention Center in New Mexico opened, which subsequently closed on December 15, 2014. In its place, in December 2014, DHS opened the South Texas Residential Center in Dilley, Texas, which remains in operation today.

In August 2014, the Karnes County Detention Center in Karnes City, Texas, was converted to a family detention center. It too remains in operation. DHS viewed family detention as a part of an overarching deterrence strategy. The idea was to detain families for the pendency of their immigration court cases. However, the federal courts determined the government could not detain children for long periods in a facility not licensed by the state. As a consequence, family detention centers became processing facilities, which released families from ICE custody when they established “credible fear” to pursue an asylum claim in immigration court (Preston 2015).

With Border Patrol stations unable to handle the record numbers of apprehensions, on July 17, 2014, DHS established the Ursula Processing Center (“Ursula”) in McAllen, Texas, a 55,000-square-foot facility dedicated to families and unaccompanied minors (Soboroff and Ainsley 2018). The facility provides “a single place for kids and families to be processed and initially housed, away from the individual stations and farther-away processing” (Findell 2014). ICE transports families released from Ursula to family detention centers or ORR facilities for unaccompanied children.

The Executive Office for Immigration Review (EOIR), the agency responsible for conducting immigration court removal hearings, found itself at the heart of the proposed “aggressive deterrence strategy.” For years, as Congress appropriated increased funds for immigration enforcement, EOIR did not receive comparable increases in appropriations,[4] and court backlogs began to grow. The immigration courts already had a 400,000 case backlog by July 2014 (Lind 2014).[5] In 2014, the Obama administration refocused EOIR’s priorities to recent border crossers in the hope of achieving relatively rapid adjudications and removals that would deter persons in Central America who might otherwise be inclined to migrate to the United States. However, this reasoning was flawed; families and children were fleeing due to legitimate fear and swift adjudications did not deter them from coming. The priority removal categories — which were used over two years — proved ineffective and inefficient, draining resources from other cases. EOIR replaced cases that were ripe for adjudication with those that were not, resulting in a net increase in pending cases. By July 2016, EOIR’s pending caseload topped a half million. By the fall of 2016, EOIR moved to eliminate the priority categories.

The USCIS Asylum Division, like EOIR, has suffered from years of underfunding because it is almost entirely funded through application fees and receives no congressional appropriation.[6] With the rising number of apprehended families and unaccompanied children, USCIS saw sharp increases in credible fear interviews and affirmative asylum applications. The Asylum Division began to grow a significant backlog of asylum applications as it worked to prioritize credible fear screenings and affirmative asylum applications for unaccompanied children.

After months of working through the logistics, in December 2014, the administration announced the establishment of the Central American Minors (CAM) program, which was expanded to include additional family members on July 26, 2016 (DHS n.d.). Under CAM, certain unmarried children under the age of 21 from El Salvador, Guatemala, and Honduras, as well as qualified family members,[7] could apply for refugee status in their home states (“in-country processing”) and, if successful, could be resettled or paroled to the United States (DHS n.d.). This meant that applicants could complete the entire adjudication process in their country of origin prior to relocating to the United States. While CAM had its flaws, it provided a safer alternative (than irregular migration) to more than 10,000 children and family members. Yet on November 9, 2017, DOS stopped accepting new CAM applications (DHS n.d.).

In 2016, the Citizenship and Immigration Services Ombudsman culminated its review of the CAM program with a comprehensive report, which found that the program needed to be strengthened in several areas. It recommended that the program shorten its processing times, provide access to counsel during interviews, expand eligibility criteria, and provide further orientation and updates to applicants on the status of their cases. Of particular concern, it found that the costs associated with the program — such as DNA testing, travel costs, lack of resettlement assistance, and limitations on adjustment of status — could be prohibitive, and that important safety considerations needed to be addressed for applicants that faced dangerous situations in their countries of origin (DHS 2016a).

In 2012, CBP had developed a marketing plan aimed at educating minors and their parents on the dangers of the journey north in an effort to discourage children from migrating. In July 2014, CBP expanded the campaign to families and focused it on both the dangers of the journey and the fact that no automatic permission to stay in the United States would be granted upon arrival, as smugglers claimed. Initial reports showed that the campaign resonated with many who heard it. However, the influx continued.

In 2015, the number of families and unaccompanied children seeking to enter the United States remained at elevated levels,[8] and the administration continued to discuss how to deter others from migrating. On July 7, 2014, Mexico had launched its Programa Frontera Sur aimed at protecting migrants entering through its southern border and managing its southern ports of entry in ways that increased security and promoted more regional cooperation (Wilson and Valenzuela 2014). The United States continued efforts to support and grow Mexico’s nascent asylum system, which on paper seems to offer more expansive protection than US law (Morrissey 2018). These efforts helped to stabilize migration at the US southwest border in 2015 (Council on Hemispheric Affairs 2016). As a result, conversations within the interagency working group pivoted to examining the effectiveness of the decision to establish priority removal categories established by EOIR, and negotiations occurred between DHS and EOIR to roll them back.

Simultaneously, ICE carried out massive enforcement actions in 2015 and 2016 (Markon and Nakamura 2015; Gerstein and Kim 2016), which focused on families with outstanding removal orders. The government hoped that substantial media coverage of these removals would serve as a strong deterrent to others who might otherwise migrate. However, what immediately became clear was that many families had received removal orders due to the lack of effective counsel (Gamboa 2016). In addition, the government had failed to analyze the reasons that families may not have appeared for court. An informal analysis of the in absentia rate for unaccompanied children illustrated the need to improve the process of serving children with the Notice to Appear (NTA).[9] It found, for example, physical addresses that were not postal addresses and addresses that were vacant properties, and led to concerns in many cases over whether the right adults had received a child’s NTA. For these reasons, many unaccompanied children received removal orders without having knowledge of a court hearing. This analysis led to discussions between ORR, DHS, and EOIR, and a commitment to improve government processes to verify addresses and ensure proper receipt of the NTA.[10]

DHS’s expansion of alternatives to detention (ATDs) represented one of the more positive developments in 2015. Legal challenges[11] to the long-term incarceration of families and an increasing awareness of the humanitarian crisis led to efforts to expand the use of ATDs and implementation of ICE’s Family Case Management Program (FCMP). A large body of research has documented the detrimental effects of detention on asylum seekers (Healey 2004; Cleveland, Rousseau, and Kronick 2012; Australasian College for Emergency Medicine 2015; Kotsioni 2016). Beyond its mental health impacts, detention impedes the ability of asylum seekers to obtain legal services and to present their cases. Over the years, ATD programs have led to high appearance rates at appointments with the government. In a three-year demonstration program begun in 1997 (Root 2000), 91 percent of program participants appeared for their required hearings (ibid., 5). The FCMP — launched in January 2016 — experienced a 99 percent success rate in ensuring asylum seekers attended ICE check-ins and more than 99 percent of participants attended their immigration court hearings (Desiderio 2018). ATD programs are far less costly than detention as well.^[12]

In 2016, interagency work on large-scale migration from Central America focused on reform of the asylum system and improvements to CAM. This work stopped with the election. The new administration pursues an even more aggressive deterrence strategy. Yet persons fleeing life-threatening events continue to arrive in the United States. Rather than learn from past mistakes, the United States is still not effectively responding to migrants and asylum seekers from Central America or elsewhere. Its crisis management efforts from 2011 to 2016 did not lead to an orderly, safe, and legal flow, and this problem has gotten worse under the new administration, which refuses to acknowledge the humanitarian crises the underlie this flow. Looking forward, the United States needs to draw the right lessons from the past and create a blueprint for a more appropriate humanitarian response.

II. Looking Forward – Recommendations

The US immigration system — which was designed for a different era in our history — is too inflexible to accommodate changed and evolving migration patterns. The United States must move beyond crisis management and create a system that balances humanitarian concerns, family unity, efficiency, cost to taxpayers, and operational imperatives. The following recommendations are based on lessons learned and innovative approaches developed over the last decade.

1. Protections for Vulnerable Populations

A. Asylum and Refugee Processing

Persecution, violence, and unstable economic conditions drive persons to migrate. The Central American migration crisis highlighted the lack of resiliency in the US protection system. The political branches of government must re-imagine a protection system that it is both efficient and offers the support necessary to shepherd bona fide asylum seekers through the process. To address these two needs:

• The USCIS Asylum Division should consider every asylum case affirmatively (DHS 2016b; Meissner, Hipsman, and Aleinikoff 2018). Creating a non-adversarial asylum system would support the government’s interest in efficiency and would provide bona fide asylum seekers with a safe venue to discuss their trauma and fear of return. This process would not preclude referral to an immigration court system, but would consolidate initial review in one non-adversarial entity.
• Congress should appropriate sufficient funding for staffing and other resources for the USCIS Asylum Division. A stable funding stream and proper staffing would ensure resilience and timeliness of adjudications, cut down on the incentive for fraud, and benefit asylum seekers that need to establish a new life in the United States (Georgetown University 2014).
• DHS and DOJ should develop asylum regulations that are responsive to the full range of conditions leading to flight and fear of return.
• DHS should establish efficient and timely refugee processing in the Western Hemisphere.
• DHS should reinstitute the CAM program and expand the in-country refugee processing program. In so doing, DHS should pay close attention to the recommendations from the CIS Ombudsman’s office on ways to improve and strengthen the program.[13]
• Congress should appropriate sufficient funding to establish efficient and timely asylee and refugee processes, and should assist asylees and refugees to integrate into US communities.[14]

B. Unaccompanied Children

For years, the US government has struggled to develop a system that addresses the special needs of the most vulnerable of all migrants, children. Over the years, the government has tried to retrofit a complex immigration system to the needs of children, but children are not little adults. In 2011 – 2012, DHS took steps to make the antiquated system more accessible to children. While none of those changes fully addresses the unique needs of unaccompanied children, they do demonstrate that practical solutions are possible.

• DHS should develop a children’s asylum corps, with a role similar to asylum officers, to conduct non-adversarial interviews with unaccompanied children to screen for asylum relief in a child-friendly way (Georgetown University 2014).
• The Attorney General should direct immigration judges not to proceed in the cases of unaccompanied children until they have counsel or reach the age of majority.
• DHS should establish a program similar to the Legal Orientation Program for children in CBP custody. Such a program would allow children from Mexico to receive screening and information about the immigration process.
• DHS and DOJ should establish a robust formal program, which continually trains government employees on the unique needs of children and challenges related to working with them.[15]
• DHS and DOJ should promulgate regulations that (1) articulate asylum claims for unaccompanied children are reviewed by USCIS in the first instance, (2) do not place children in the immigration court process until after USCIS considers their asylum claim, and (3) stipulate the government agencies that may determine unaccompanied status and the process for such determination.

2. Alternatives to Detention

As discussed above, family detention has not deterred Central American migration. Rather, the research shows that detention is extremely detrimental to both children and parents (Crea et al. 2018; Poehlmann-Tynan et al. 2018). Conversely, ATD programs have been shown to be effective in ensuring participation in the immigration system. As a result:

• Congress should eliminate detention bed quotas for ICE (McCarthy 2014).
• DHS should eliminate family detention.
• DHS should use detention only as a last resort and default to the use of ATDs, if necessary.
• DHS should re-instate the Family Case Management Program.

3. Fair and Independent Immigration Court System

The last two years have highlighted the importance of an independent immigration court system. Politically driven decisions often prove to be ineffective and inefficient. Moreover, the law should be applied by neutral arbiters.

• Congress should create an Article I immigration court.
• In the alternative, Congress should allow all applications for immigration status to be first reviewed by USCIS, allowing immigration courts to review denials of immigration status and to make custody determinations for immigrants held in ICE detention.
• Congress and DOJ should adequately staff and oversee the immigration court system.[16]
• DOJ should maximize the use of technology and examine ways to better distribute immigration court caseloads. While not ideal, the use of video teleconferencing may help courts reach rural areas where it is not cost-effective to locate a court.
• DOJ should provide adequate resources for interpretation services. Efficient court hearings require appropriate interpretation services. The court system should hire full-time interpreters and not rely on contract services.
• DHS and DOJ should streamline the filing of NTAs. All NTAs should first go to ICE, the “prosecutor” in removal cases, to review whether the NTA is legally sufficient and ready for prosecution before it is filed in immigration court.
• DOJ should establish a case’s venue. The immigration court should decide where ICE files NTAs.
• DOJ should allow the immigration court to change venue on its own motions in limited circumstances, and limit the number and timing of such actions. This authority would allow judges to control their dockets.
• DOJ should direct immigration judges to require the parties in a case pending in immigration court to participate in pre-hearing conferences. Additionally, DOJ should provide immigration judges with the authority to consider waived or abandoned any issues or evidence not discussed in a pre-hearing conference. This reform would enable judges to focus on issues that are actually in dispute.

4. Access to Counsel

The need for noncitizens to access reliable and affordable legal advice and counsel is paramount, as illustrated most acutely during the last decade when legally insufficient NTAs and lack of expert legal advice resulted in removals. This was unfair, inefficient, and required that court cases be reopened (Gamboa 2016).

• Congress should transform the immigration system into a simpler, more user-friendly, and non-adversarial system that allows individuals to obtain necessary legal advice or, if necessary, better navigate the system pro se.
• Congress should provide funding to:
  • DOJ that requires immigration judges to appoint counsel for indigent noncitizens in removal proceedings.[17]
  • Expand the Legal Orientation Program and Immigration Court Help Desks.
  • Provide basic legal orientation materials to individuals prior to release from CBP custody.
  • Create a national network of experts to provide legal assistance to all individuals in the immigration system, both those in removal proceeding and those seeking immigration benefits.

5. Increase Communication and Cooperation within the Government

A particularly important lesson from the influx of Central American migrants was the critical need for communication and cooperation within the government. This requires a decision-making apparatus that can span federal agencies and their sub-components with immigration responsibilities. Waiting for a meeting of the minds tends to focus discussions on the system’s law enforcement components and holds back discussion of a humanitarian response and solution. For federal agencies, such as DHS, with multiple immigration components, a centralized office with a career public servant at the helm empowered to make immigration-related decisions is necessary.

• The White House should establish a high-level position, which could be located within the OMB or the National Security Council, to direct decision-making on interagency issues, like large-scale migration and refugee flows.
• DHS and DOJ should establish a centralized office led by a career public servant to direct decision-making on intraagency issues, like large-scale migration and refugee flows, and coordinate with the White House on interagency issues.

6. Address the Underlying Causes for Migration

Even if reformed, the US immigration system will remain taxed if the United States does not help to address the underlying conditions that spur individuals to migrate and it fails to build capacity in transit countries to screen and resettle migrants in the region. Working with its neighbors and regional partners to address the socioeconomic and political situations in the Northern Triangle that have led to increased migration of families and unaccompanied children will provide the United States with increased capacity in its immigration system.[18]

• The United States should work with migrant source countries to address the socioeconomic and political challenges that underlie displacement.
• The United States should continue to partner with countries in the region to train, support, and establish more robust asylum and refugee resettlement regimes within the region.

A comprehensive overhaul of the immigration system in the United States may be unlikely in the near future. However, these recommendations can be executed, while the administration and Congress consider more far-reaching reform. They can be a starting point, and should be implemented with all deliberate haste.

[1] The author is the Chief of Programs at the Tahirih Justice Center. From 2010 – 2017, she worked at the US Department of Homeland Security (DHS) and the US Department of Justice (DOJ) on policy initiatives surrounding the government’s interaction with unaccompanied children, and later families from Central America. The author dedicates the paper to Juan Osuna. For three of the most rewarding years of her career, she had the privilege to work alongside Juan. He was a mentor and a friend, who broadened her understanding of immigration law, public service, and servant leadership. He never gave up hope that the government could create an efficient and just system for immigrants. Special thanks to Donald Kerwin, Barbara Leen, Archi, Pyati, and others who wish to remain anonymous for their invaluable insights, memories, expertise, thoughts, and edits to this paper.

[2] An “unaccompanied alien child” or “UAC” is one who lacks “lawful immigration status in the United States; has not attained 18 years of age; and with respect to whom: 1) there is no parent or legal guardian in the United States, or 2) no parent of legal guardian in the United States is available to provide care and physical custody.” See Homeland Security Act of 2002, 6 U.S.C. § 279(g)(2) (2002).

[3] Enhancing Efforts to Combat the Trafficking of Children, 8 U.S.C. § 1232(b)(3) (2008).

[4] DHS immigration enforcement appropriations increased 105 percent between FY 2013 to FY 2015 while EOIR’s appropriations only increased 74 percent during the same time period (American Immigration Council 2016).

[5] In May 2015, there were 233 immigration judges (Hennessy-Fiske 2015).

[6] In 2011, it received one congressional appropriation for $25 million, but that allocation was never continued or renewed (Human Rights First 2016).

[7] CAM was expanded to allow sons and/or daughters of US-based lawfully present parents who were married and/or over 21 years old; in-country biological parents of the qualifying child; and the caregiver of a qualifying child who was related to either the US-based qualifying parent or qualifying child (DHS n.d.).

[8] There was a 42 percent decrease in apprehensions of families in 2015 and a 13 percent increase over 2014 levels of apprehension in 2016 (US Border Patrol 2018b).

[9] An NTA is the government’s charging document that informs an individual s/he must appear in immigration court before an immigration judge for removal proceedings.

[10] When unaccompanied children from a noncontiguous country (not Mexico or Canada) are apprehended by DHS, they are administratively processed by DHS and issued NTAs. Unaccompanied children do not need to pass a credible fear interview to remain in the United States. The NTA reflects that the child was “served” through the conservator (the ORR shelter). Once DHS completes its processing, it transfers the unaccompanied children to the care and custody of ORR which must seek the least restrictive setting for the child during the pendency of their immigration court case. ORR begins a process of seeking a “sponsor,” which fall into three categories — parents, next of kin (such as grandparents, aunts, uncles), and friends of the family. While the time necessary for ORR to place a child with a sponsor has varied over the years, between 2014 – 2016 the process generally took less than 60 days. During this time period DHS, ORR, and EOIR agreed that DHS would hold notifying the immigration court regarding the case of an unaccompanied child for 60 days to allow the child to be united with a “sponsor” and move to a new address. DHS would then notify the immigration court with jurisdiction over the unaccompanied child’s new residence. This process created efficiencies in the immigration court and provided unaccompanied children time to settle into a more permanent situation before initiating the immigration court process.

[11] See (US Court of Appeals for the Ninth Circuit 2016).

[12] In the FY2016 budget, the cost of family detention was $342.73 per person per day. The average cost for ATD is $5.16 per day (AILA et al. 2017). The cost of the Family Case Management Program was $38 each day per family.

[13] See DHS (2016a).

[14] Organizations have started to work in partnership with the federal government. See Welcoming America, http://www.welcomingrefugees.org/about-project.

[15] Both DHS and EOIR have developed these trainings in the past. In 2012, DHS developed a cross-component training for employees working with unaccompanied children. In the spring of 2015, EOIR conducted a weeklong training for immigration judges on adjudicating the cases of unaccompanied children. At both agencies, the government brought together subject matter experts from government and non-governmental organizations to provide training.

[16] Many of these ideas come from the notes of Juan Osuna and his thoughts for how the immigration court system could operate more efficiently. Effective management of the immigration court system requires close docket management and strong management of court staff. Certain immigration courts, for example, conduct master calendar hearings (which are akin to an arraignment) to put long-pending cases back on the docket and conduct status hearings to evaluate them for further action. Because there may have been changes in case equities or in the law, many of these cases can now be brought to resolution.

[17] Studies have found that detained individuals are twice as likely to obtain immigration relief and non-detained individuals are five times more likely to obtain immigration relief when represented by counsel (Eagly and Shafer 2016).

[18] For a more detailed account of past and present efforts to address regional cooperation and build stability in the Northern Triangle, see Meissner, Hipsman, and Aleinikoff (2018).

REFERENCES

AILA (American Immigration Lawyers Association), Lutheran Immigration and Refugee Service, National Immigrant Justice Center, and Women’s Refugee Commission. 2017. The Real Alternatives to Family Detention. https://www.womensrefugeecommission.org/images/zdocs/Real-Alternatives-to-Family-Detention.pdf.

American Immigration Council. 2016. Empty Benches: Underfunding of Immigration Courts Undermines Justice. Washington, DC: American Immigration Council. https://www.americanimmigrationcouncil.org/sites/default/files/research/empty_benches_underfunding_of_immigration_courts_undermines_justice.pdf.

Australasian College for Emergency Medicine. 2015. “Statement of Health of Asylum Seekers.” Doc. S63, V. 01. https://acem.org.au/getmedia/d7afe143-c88d-40a3-bc49-0626b022c85c/S363_Statement_Asylum_Seeker_Health_Jul_15.aspx.

Cavendish, Betsy, and Maru Cortazar. 2011. Children at the Border: The Screening, Protection and Repatriation of Unaccompanied Mexican Minors. Washington, DC and Mexico City: Appleseed. http://www.appleseednetwork.org/wp-content/uploads/2012/05/Children-At-The-Border1.pdf.

Chan, Jennifer Chan, and Katharina Obser. 2017. “The Price of Border Security: How an Influx of Central American Refugees Led to a Resurgence in Family Detention.” http://cdn.knightlab.com/libs/timeline/latest/embed/index.html?source=1qfygAAhaO63i2UB3fuD5dfFTQaegTwn_7eaMkBVqZJQ&font=Bevan-PotanoSans&maptype=toner&lang=en&height=650.

Cleveland, Janet, Cecile Rousseau, and Rachel Kronick. 2012. The harmful effects of detention and family separation on asylum seekers’ mental health in context of Bill C-31. Brief submitted to the House of Commons Standing Committee on Citizenship and Immigration concerning Bill C-31, the Protecting Canada’s Immigration System Act. https://csssdelamontagne.qc.ca/fileadmin/csss_dlm/Publications/Publications_CRF/brief_c31_final.pdf.

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