WASHINGTON—The Department of Homeland Security is working on a new legislative package to close loopholes it says are “catastrophic” to border security.
The new package will seek to stop the exploitation of the asylum system and the practice of catch and release, according to senior administration officials on a press call on April 2.
Under catch and release, about 85 percent of those who cross the border illegally and claim asylum—saying they have a “credible fear” of returning to their home country—will be released into the United States within a few weeks, according to senior administration officials.
The asylum seekers are given a date to show up at an immigration hearing to fully assess their claim, which is sometimes years away. Half of those who claim credible fear at the border do not file an official asylum application within the requisite year, said administration officials, and most will not show up to their hearing.
If applicants file an asylum claim (which is free) and it has been pending for six months, then they are routinely provided with work authorization—regardless of the merit of the application.
Administration officials said the definition for credible fear is problematic and want Congress to fix the credibility assessment to help stop bogus claims that clog the immigration courts.
The number of cases that began with a credible fear claim leaped from approximately 3,000 in 2009 to more than 69,000 in 2016, according to the Justice Department.
If the problems aren’t fixed, “then the inducement to come to this country unlawfully, or to file frivolous claims for asylum, will not be abated,” a senior administration official said.
Officials said asylum seekers who are transiting through other safe countries to get to the United States should be applying for asylum in those countries.
A current example is the caravan of people, mostly Honduran nationals, that is passing through Mexico. The group has said about two-thirds of its members are aiming to seek asylum in the United States. However, administration officials say they should have applied for asylum once they crossed into Mexico at its southern border.
“We think it’s reasonable to allow us to consider whether a person did go through a safe country, where they could have sought asylum, before they got here,” an official said. “However, we are unable to take that into account adversely when considering someone’s asylum claim.”
The official said Congress has been asked repeatedly to fix this problem.
President Donald Trump praised Mexican immigration laws that are helping authorities to deal with the caravan of more than 1,000 people. The Mexican government said it had already repatriated about 400 people and will allow asylum claims from some others.
“So Mexico has, at this moment, it seems they’ve broken up large numbers of that particular caravan,” Trump said on April 3. “I told Mexico—and I respect what they did—I said, look, your laws are very powerful; your laws are very strong.”
Trump has also repeatedly threatened to use the North American Free Trade Agreement to pressure Mexico into working with the United States more on immigration issues.
Border Crossings Increase
Administration officials said critical fixes are needed to stem the flow of family units and unaccompanied minors, which have both increased substantially over the last year, after a dramatic drop following Trump’s inauguration.
In the last five months, more than 31,000 family units (consisting of one adult and at least one minor child) and more than 17,500 unaccompanied minors have been apprehended after illegally crossing the southwest border into the United States.
Under current U.S. law, almost all 48,500 will have likely already been released into communities, with pending immigration court dates set for years into the future.
Administration officials said fixes need to be made specifically to the Flores Settlement Agreement and the Trafficking Victims Protection Reauthorization Act (TVPRA).
The TVPRA was passed in 2008 with great intentions for helping stop child trafficking, said Acting ICE Director Tom Homan. However, it has turned into a tool for exploitation.
Children from Mexico and Canada can be returned to their country if it is determined they are not a victim of trafficking. However, a minor from a non-contiguous country cannot be returned to Mexico, even if they’re not a victim of trafficking, and therefore must be accepted into the United States.
Ninety-five percent of unaccompanied minors are from El Salvador, Honduras, or Guatemala. Almost 70 percent are aged between 15 and 17.
Homan wants the TVPRA amended so that minors who are not genuine trafficking victims can be quickly returned home or removed to safe third countries.
“Because once you release a child from Central America that’s going to claim asylum … once they get to court—if they show up at court—most of them don’t get asylum,” he said on Feb. 2. “So they’re released in the community and very few of them are ever removed because they’re in the wind.”
Only about 3.5 percent of the unaccompanied minors apprehended by Border Patrol are eventually removed from the United States, the White House said.
Flores Settlement Agreement
The Flores Settlement Agreement is a Clinton-era settlement of a class-action lawsuit that facilitates the practice of catch and release.
Under the agreement, unaccompanied minors must be released by Border Patrol within 72 hours to the Office of Refugee Resettlement, a division of the Department of Health and Human Resources. From there, most are released within about 45 days to a parent or family member already living in the United States.
Family units are transferred from Border Patrol to Immigration and Customs Enforcement, where they must be released after 20 days.
“We cannot possibly get a removal order within three weeks, which means we have to release these family units,” a senior administration official said on April 2.
“We’ve asked for changes in this Ninth Circuit decision so we can actually do our job and detain those who are illegally in the United States,” the official said. “They still get due process, and they can still claim asylum, but we can’t have our hands tied [regarding] who we detain and how long we detain them.”
Administration officials said smuggling organizations in Mexico and Central America use the catch and release phenomenon created by the TVPRA and the Flores Settlement Agreement to sell their wares and entice illegal immigrants.
“What’s creating these pull factors is the belief that there’s going to be never-ending leniency, from now until the end of time,” a White House official said.
In recent months, Congress has been faced with legislation containing fixes for the above loopholes, but nothing has passed.
Four immigration reform bills failed to pass the Senate in mid-February, prior to the president’s March 5 deadline for Congress to find a permanent fix to the temporary deportation amnesty given to Deferred Action for Childhood Arrivals (DACA) recipients.
A senior administration official criticized Democrats for opposing tighter border controls outlined in several of the failed bills.
“If you’re a member of Congress and you oppose those fixes, as Democrats do, you’re basically saying that you want there to be endless numbers of new waves of illegal immigrants that would be eligible for a theoretical future DACA-type program, and you’ll never solve the problem.”
The new legislation is not expected to include any permanent fixes for DACA recipients.