Border Security: From the Caravans of 2018 to the Supreme Court in 2019

December 27, 2018 Updated: January 23, 2019

WASHINGTON—Although the wall is dominating the final breaths of 2018, it was the migrant caravans and the record number of family units crossing the border that towered over border security this year.

As the pace of illegal activity along the southwest border increased, Congress slowly ground to a halt on finding solutions, and federal judges took a blowtorch to all of President Donald Trump’s attempts to patch holes in the system.

Major media outlets played a role in injecting hysteria into an already-fraught humanitarian crisis, including several times showing photos or footage from the Obama era to discredit Trump by letting people assume the images were current.

This year, tens of thousands of Central Americans paid smugglers to journey north and enter the United States as asylum-seekers. Thousands more joined caravans in April and in October.

In total, almost 400,000 people were apprehended along the southwest border after crossing illegally during fiscal year 2018—averaging out to almost 1,100 per day.

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Migrants rush past riot police at the foot of a bridge leading from the migrant camp to the El Chaparral pedestrian entrance at the San Ysidro border crossing in Tijuana, Mexico, on Nov. 25, 2018. (Charlotte Cuthbertson/The Epoch Times)

Driving the increases were family units, which consist of at least one child and one adult.

The administration tried several methods to stem the flow, explaining that while most asylum claims are bogus, the system is being used as an effective way to gain access to the United States and disappear once inside the country.

Eighty-nine percent of asylum-seekers from Central America pass an initial screening at the border when they claim fear of returning to their country. If a child is involved, as is the case for more than 60,000 crossings per month right now, the maximum detention stay for both parent and child is 20 days—a timeframe that renders an asylum adjudication impossible.

Everyone is then released into the United States—hence the concept of “catch and release.” Yet only 9 percent of them are subsequently granted asylum by an immigration judge, according to the U.S. Department of Justice (DOJ).

The rest remain in the wind.

“Indeed, only 1.5 percent of family units from Central America apprehended [in fiscal] 2017 have been removed to their countries of origin, despite the fact that most will not end up having valid claims to remain in the United States when their court proceedings conclude,” Customs and Border Protection (CBP) Commissioner Kevin McAleenan said during a Senate oversight hearing on Dec. 11.

Hoping Something Sticks

Absent congressional action to close the loopholes that are allowing economic migrants and those who want to join family members to enter anytime, the administration has tried several approaches to reduce the number of fake claims of asylum.

In May, the Department of Justice launched a “zero tolerance” policy, saying all illegal border crossers are subject to prosecution. The policy was intended to funnel asylum-seekers through ports of entry where processing was easier  and keep Border Patrol agents out in the field.

The prosecutions forced the temporary separation of adults and children while an illegal entry case was being adjudicated. Officials also verified the familial relationship between the adult and the child, conducted a criminal background check, and dealt with any medical issues, including communicable diseases.

An uproar ensued; the administration was blamed by Democrats and some media for “ripping babies from mothers’ arms,” and it quickly walked the policy back.

border security
Asylum-seekers turn themselves in to a Border Patrol agent after crossing from Mexico into the United States near Mission, Texas, on Nov. 7, 2018. (John Moore/Getty Images)

In June, then-Attorney General Jeff Sessions narrowed the criteria for asylum. He essentially reverted the criteria to what it was before 2014, when the Obama administration opened it up to include private criminal cases, including domestic violence.

The definition has not changed. Asylum-seekers have always needed to prove that they have suffered past persecution or have a well-founded fear of future persecution in their home country because of their race, religion, nationality, political opinion, or membership in a particular social group.

“It is not enough to simply show that the government has difficulty controlling the behavior or that certain populations are more likely to be victims of crime,” the Department of Homeland Security stated in June.

U.S. District Judge Emmet Sullivan blocked this change on Dec. 19.

On Nov. 9, as the large caravan from Central America was approaching, Trump said anyone crossing the border illegally would be rendered ineligible for asylum.

U.S. District Judge Jon Tigar blocked Trump’s proclamation on Nov. 20, and on Dec. 19, the Supreme Court declined to intervene until the case completes its journey through the lower courts.

border security
Members of the Central American migrant caravan camp out at the Benito Juarez sports complex in Zone Norte near the U.S.–Mexico border in Tijuana, Mexico, on Nov. 19, 2018. (Charlotte Cuthbertson/The Epoch Times)

Remain in Mexico Deal

But, in what may be a breakthrough in controlling undeserving asylum claims, Department of Homeland Secretary Kirstjen Nielsen announced on Dec. 20 that asylum-seekers may now be returned to Mexico for the duration of their immigration proceedings.

“If they are granted asylum by a U.S. judge, they will be welcomed into America. If they are not, they will be removed to their home countries,” Nielsen said. “‘Catch and release’ will be replaced with ‘catch and return.’ This will also allow us to focus more attention on those who are actually fleeing persecution.”

The agreement seems to be more of a handshake at this point, but it’s the right thing for Mexico to do, said Jessica Vaughan, director of policy for Center for Immigration Studies.

“What is really motivating Mexico [to agree] is the fact that this is becoming their problem, too. That the United States is not just accepting people into the country,” she said. “Politically, no Mexican president wants to be seen as doing the bidding of the United States, but this is really bigger than that—this is a problem for Mexico, too.”

Vaughan said a $10.6 billion foreign aid package for southern Mexico and Central America announced on Dec. 18 would have sweetened the deal. “I think everyone agrees that could help if it’s used in the right way,” she said.

Expectations for 2019

“If 2018 was the year of the caravan, then the Supreme Court is going to play the lead role in 2019,” Vaughan said. “Nothing is going to happen in Congress. Everything that the administration tries to do is going to be subject to a lawsuit and possibly enjoined.”

Birthright citizenship, asylum criteria, the end of DACA, and sanctuary city funding will all likely be taken up by the Supreme Court in 2019 after the cases work their way through the lower courts.

supreme court
The Supreme Court of the United States in Washington on Dec. 10, 2018. (Samira Bouaou/The Epoch Times)

Vaughan predicts the House Democrats will pass some kind of amnesty deal, most likely for recipients of Deferred Action for Childhood Arrivals (DACA).

“Some big amnesty that will go nowhere in the Senate,” she said. “But they want to do that for their base. Because they think that benefits them politically and they want to get the Republicans on record as opposing an amnesty.”

And she predicts that Democrats will look to cut funding for Immigration and Customs Enforcement (ICE), detention centers, and “all kinds of enforcement programs. And then the Senate will put it back in.”

She said that the Remain in Mexico policy might get challenged in court and that it’s not a complete solution anyway. “It can be overturned by the next president, or dropped by Mexico, or something—there are things that can go wrong with it,” she said. “It’s still dysfunctional if all these people end up getting approved for asylum anyway—if the definitions are not tightened up to the language in the law. And it’s still dysfunctional if we can’t figure out a way to adjudicate these cases more quickly.”

Immigration courts currently have a backlog of almost 800,000 cases awaiting adjudication.

border security
The U.S. military installs concertina wire on the levee behind Granjeno in Texas, just north of the U.S.–Mexico border on Nov. 7, 2018. (Samira Bouaou/The Epoch Times)

The Broader Picture

Trevor Loudon, an expert on communism and a contributor to The Epoch Times, agrees that the battle in 2019 will largely shift from Congress to the judiciary.

But “the real battle is for voting numbers,” Loudon said. Democrats would gain an electoral advantage through millions of illegal alien votes, he said, “versus the patriots’ desire for national sovereignty.”

“That’s what it comes down to,” he said.

“And you’ve got a complicating factor in there—you’ve got some elements of the right, the Chamber of Commerce types, who all they care about is open borders so they can get an unending supply of cheap labor.”

He predicts 2019 will bring a real confrontation.

“This is going to be really, really, tense confrontation,” he said. “And we’re going to see an amp up in the aggravation. I think the wall will get started, and I think the left will do everything they can to stop it.”

Loudon said he also expects “a civil war” in the Democratic Party between the new progressives and the old guard.

“This isn’t socialist versus liberal. This is communist versus socialists,” he said. “They’re going to be preoccupied. They’re not going to get a lot done because President Trump is going to veto it anyway, but they’re going to push the most extreme, left-wing, progressive measures you could possibly think of.

“And the judiciary is chock-full of socialist and open-border Marxists, so they will do whatever they can.”

This article is part of our special Year in Review series. Click here for all content.

Follow Charlotte on Twitter: @charlottecuthbo
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