WASHINGTON—As the “caravan” of migrants enters the United States from Tijuana, Mexico, the administration is trying to send a message of stronger border enforcement policies, but it is hamstrung by loopholes in U.S. immigration law.
Around 100 members of the caravan ended up in Tijuana, Mexico, on April 29, with the intention of crossing the border at the San Ysidro port of entry and claiming asylum based on a “credible fear” of returning to their home country. Most are from Honduras.
They were met by an announcement from U.S. Customs and Border Protection (CBP) that the San Ysidro port of entry had reached capacity for people entering the United States without proper documentation.
“Depending upon port circumstances at the time of arrival, those individuals may need to wait in Mexico as CBP officers work to process those already within our facilities,” said CBP Commissioner Kevin McAleenan, in a statement on April 29. “As sufficient space and resources become available, CBP officers will be able to take additional individuals into the port for processing.”
The closure was short-lived, and processing resumed on April 30.
San Ysidro is the country’s busiest port of entry, with more than 100,000 travelers passing through each day. A CBP spokesperson said port capacity is dependent on a number of factors, including holding space, overall port volume of traffic, officer resources, complexity of cases, medical needs, translation requirements, and enforcement actions.
“In recent days, San Ysidro has exceeded port capacity due to an increase in arrivals of undocumented persons making asylum claims or presenting complex cases,” the official said.
Last weekend wasn’t the first time San Ysidro has limited its entry. It has happened as recently as within the past six months, and in 2016, entry was restricted when an influx of Haitians arrived at the California border, according to the CBP official.
President Donald Trump said he has been closely watching the caravan’s progress.
“Our immigration laws in this country are a total disaster,” Trump said during a press conference on April 30. “We are a nation of laws—we have to have borders. If we don’t have borders, we don’t have a country.”
Trump said images of the San Ysidro area, with people sitting atop the border fence, show that “even though it’s not a particularly good wall,” it’s working.
“If you didn’t have that, you’d have thousands of people just pouring into our country,” Trump said, again calling for the need for additional barriers along the border.
Receiving hordes of asylum-seekers—especially from the Central American countries of Honduras, El Salvador, and Guatemala—is not a new phenomenon for the United States. In March alone, almost 40,000 families and minors crossed the southwest border illegally, and most went on to seek asylum.
The caravan, however, has gained the public’s attention, mostly because it has highlighted its trek north through its San Diego-based organization called Pueblo Sin Fronteras (which means “town without borders”). Usually, asylum-seekers pay smugglers and cartels to get them across the border, so it’s not broadcast.
Pueblo Sin Fronteras says on its website that it aims to “build solidarity bridges among peoples and turndown border walls imposed by greed.”
On April 26, the group issued a press release on Facebook, saying, “We demand the right to seek asylum.”
The release cited Section 1225 of U.S. Code Title 8, which says noncitizens with credible fear of persecution in their home country can seek asylum in the United States.
Anyone who is arrested by Border Patrol after entering illegally, or who is arrested at a port of entry for not having the required travel documentation, can claim credible fear.
The person is then screened by an asylum officer to assess the credible fear claim.
“Asylum officers grant anywhere between 75 and 90 percent of all those requests,” said Art Arthur, former immigration court judge and current resident fellow in law and policy at the Center for Immigration Studies.
Those who pass the assessment are released into the United States with a court date to determine their asylum status many years down the road. This is also known as “catch and release,” which Trump has also been outspoken about.
“Catch and release is ridiculous. If they touch our property, if they touch our country, essentially you catch them and you release them into our country,” he said. “That’s not acceptable to anybody. So we need a change in the law.”
After six months of a pending case, the asylum-seeker is able to get work authorization.
Many simply do not show up at their court appointment, and of the ones that do, about 13 percent are granted asylum, according to fiscal year 2016 numbers, when more than 65,000 asylum applications were received.
However, 23,868 of those fell into the “Other” category, which most often means the cases were administratively closed or terminated, according to the Executive Office for Immigration Review, which oversees immigration courts.
The number of asylum claims from Honduran nationals has skyrocketed over the last several years. However, the number granted asylum has hovered around the 5 percent mark.
In fiscal year 2012, around 1,550 Hondurans applied for asylum and 73 were granted—a 4.7 percent rate. Another 197 were classified as “other.”
In fiscal year 2016, almost 11,000 Hondurans applied and 620 were granted—a 5.7 rate—while another 2,247 were classified as “other.”
Arthur said the detention system is currently the key to whether the caravan will open the floodgates to more and more claims.
“So if they end up getting detained until the asylum determination is made, we probably won’t see as many [following],” he said. “If they end up releasing them [into the United States], we’re going to see more.”
He said he has heard indications that the heads of CBP, Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services would all prefer the Secretary of Homeland Security to detain the asylum-seekers pending a final decision.
However, detention facilities are often full (hence catch and release) and there are restrictions placed on the length of time individuals can be detained.
Family units are transferred from Border Patrol to ICE, which must release them 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.
Family detention space is limited, yet family units are the largest group of asylum-seekers crossing the southwest border illegally.
Additionally, minors are required to be transferred to Health and Human Services within 72 hours of being picked up by Border Patrol—at which time the Department of Homeland Security loses track of them.
Unaccompanied minors—those under 18 traveling without an adult—from anywhere but Mexico and Canada cannot be turned back, so the United States is forced to accept them, even if they cannot verify their age, identity, credible fear status, or criminal background.
Most minors are released by Health and Human Services within about 45 days to a parent or family member already living in the United States, often illegally.
Trump is calling for Congress to close the loopholes that force catch and release and the inability to return minors to countries in Central America or other noncontiguous countries.
Secretary of Homeland Security Kirstjen Nielsen said on April 25 that her department is monitoring the caravan and “is doing everything within our authorities to secure our borders and enforce the law.”
“Let me be clear: We will enforce the immigration laws as set forth by Congress. If you enter our country illegally, you have broken the law and will be referred for prosecution,” Nielsen said. She said asylum-seekers from the caravan should seek protections in the first safe country they enter, such as Mexico.
“The smugglers, traffickers, and criminals understand our legal loopholes better than Congress and are effectively exploiting them to their advantage,” she said.
The Department of Justice announced on April 30 the prosecution of 11 suspected caravan members for illegally entering the United States. All were arrested two to four miles west of the San Ysidro crossing.
In the statement, U.S. Attorney for the Southern District of California Adam Braverman said commitment to the rule of law is the foundation of the American Dream
“These 11 defendants face charges now because they believed themselves to be above the law,” he said. “Those seeking entry into the United States must pledge fidelity to the law, not break them, or else face criminal prosecution.”
Five of the defendants were apprehended in a group of 18 illegal immigrants, including 13 from Honduras, three from India, and one each from Guatemala and Mexico. Another three were part of a group of seven illegal immigrants—six from El Salvador and one from Honduras.
Border Patrol agents in the San Diego Border Sector have apprehended nearly 11 percent (more than 4,000) of the total southwest illegal border crossers so far in fiscal year 2018.
Trump said the several thousand National Guard members that have been deployed to the southwest border are having a “big impact.”
“But we need a change in the law,” he said. “We have to have strong immigration laws to protect our country.”