Wednesday, March 17, 2021

How Trump Got Control of the Border: And how Biden created a crisis by throwing it all away.

 By RICH LOWRY | National Review 

Then-president Donald Trump talks with U.S. Border Patrol Chief Rodney Scott as he tours a section of the U.S.-Mexico border wall in San Luis, Ariz., June 23, 2020. (Carlos Barria/Reuters)

In a few months, if it hasn’t already, President Trump’s legacy at the border is going to look much better even to skeptical observers.

As the Biden administration unwinds Trump policies, and a new migrant crisis builds, it is becoming increasingly clear that the Trump team arrived at an approach that, after fits and starts, worked.

Counter to the image of the administration taking a blunderbuss approach to everything related to immigration, the push at the border was a thoughtful, creative, and well-coordinated effort across government agencies and between sovereign countries.

It is worth revisiting because understanding how it came about and the reasons that it made such a difference underlines the mistakes that Biden is making now, no matter how much his officials and allies want to deny it and shift blame.

Many of Trump’s policy successes — tax cuts, deregulation, judges — came from adopting standard, off-the-shelf GOP policy. There is another category, though, of intractable issues or unexpected crises that were addressed by innovative problem-solving by officials unwilling to accept the conventional wisdom about what was possible.

The Abraham Accords and Operation Warp Speed, as well as other aspects of the pandemic response, fall into this category. So does the border, even if has been largely unappreciated.

Commentators who were willing to welcome Middle East peace and the rapid development of COVID vaccines, even if it meant giving credit to people they despised, were never going to find anything good to say about the Trump administration’s immigration hawks.

Obviously, department and agency heads such as Kevin McAleenan and Chad Wolf at the Department of Homeland Security (DHS), Mark Morgan at Customs and Border Protection (CBP), Ken Cuccinelli at U.S. Citizenship and Immigration Services (USCIS), and Mike Pompeo at State played a major part in the effort.

At the staff level, White House senior policy adviser Stephen Miller, who cut his teeth working for Senator Jeff Sessions, took a lead role. He mastered the intricacies of the law and the system and pushed relentlessly against bureaucratic and policy inertia.

Even though much of the bureaucracy was hostile, especially at HHS and the State Department, there were career officials at immigration agencies who welcomed, finally, a serious attempt to control the border and were constantly consulted, including at regular White House meetings. There was also a cadre of career officials at State who worked tirelessly to secure complicated agreements with Mexico (the Migrant Protection Protocols, or MPP) and Northern Triangle countries.

“We had in place a team of people,” says a former senior administration official, “who quietly underneath the radar were doing some of the most innovative, advanced, and thorough legal work in an environment of relentless litigation and endless media hostility to accomplish something that everybody said was impossible.”

The Law Wasn’t the Problem

As the migrant crisis of 2018–19 built, it became common to say (I wrote it many times myself) that only Congress could reverse the foolish policies and destructive court decisions that made it impossible to stop the tide of migrants coming into the country.

The key insight of the administration’s immigration hawks, though, was that the statutory authority already existed to establish order at the border. It was just that the laws providing crucial enforcement tools had never been used, or become encrusted over time with regulatory practices and judicial decisions that made the system balky and ultimately unworkable.

A former official familiar with the issue explains, “If you actually look at and read and understand our immigration laws, they provide for a fair amount of enforcement. These laws were passed, a lot of them in the Nineties; several of the significant bills and laws we relied upon were signed into law by Bill Clinton or supported in a bipartisan way.”

The administration’s hawks undertook a constant interrogation of the standard operating procedure: Why are we doing it this way? Is there a law? If not, why can’t we change? And if there are practical obstacles, what are ways to solve them?

What they usually found is that at the bottom of some suboptimal practice was a regulation, or agency guidance, or court edict, or unwritten rule, but very rarely a law.

A basic question that constantly came up was: Why could the U.S. send back migrants from Mexico with relative ease, yet basically couldn’t return migrants from countries a little farther south?

The administration found a way to effectively close the loopholes that accounted for this disparity and, in so doing, got the border under control even before the onset of the pandemic.

The former senior administration official says, “We took the tools that Congress gave us that had never been used, and we used them. Then we took the regulations and rules that agencies had created that muddied, diluted, or denuded Congress’s rules, and we fixed them.”

Migrants from Honduras, part of a caravan of thousands from Central America trying to reach the United States, walk next to the border fence as they prepare to cross it illegally in Tijuana, Mexico, December 26, 2018. (Mohammed Salem/Reuters)

The Border Surges Out of Control

Once migrants were released into the country, they were unlikely ever to be deported, so the administration sought, as much as possible, to detain people until they were removed, which meant changing practices that, as it turned out, were largely discretionary.

Soon after Trump took office, in early 2017, the number of migrants dropped precipitously thanks to the so-called Trump effect, the belief south of the border that Trump would enforce the law so zealously that it would be pointless to try to come. Slowly but surely, though, everyone realized that the underlying rules hadn’t changed, and the numbers bounced back.

A former senior DOJ official characterizes the attitude of potential migrants as, “‘Well, he’s saying he’s going to do these things, but my friends and family are sending me messages on social media saying they made it through. So I am just going to go ahead and take a chance.’ And that was only possible because of these glaring loopholes that were applicable to certain demographics.”

The problem, of course, was primarily unaccompanied minors and family units from Central America. Illegal immigrants from Mexico, whether single adults, minors, or family units, by and large would simply be turned around and returned home upon apprehension.

The situation with migrants from Central America was different. They would often attempt to claim asylum (or some other protection). Under the lax standard for determining the threshold question — did they have a “credible fear” of returning home? — they would usually be approved for subsequent, time-consuming steps.

Because that process might take months or years to play out, and they couldn’t be detained that long, they would be released into the country during the proceeding, and very rarely ever leave, even if their claim was ultimately rejected (as the vast majority of claims were).

Unaccompanied minors from Central America enjoyed special status under the Trafficking Victims Protection Reauthorization Act (TVPRA). The act afforded protections to minors coming from non-contiguous countries; i.e., every place besides Mexico or Canada, most importantly in this context, Central America.

We couldn’t simply return them and, under the Flores settlement, immigration authorities had to hold them in a non-restrictive setting and release them as soon as possible. All of this meant DHS handed them over quickly (generally within 72 hours) to HHS for placement with relatives in the U.S. The result was that minors from Central America showing up at the border would reliably get into the country, creating a powerful incentive for families to send them.

Congress didn’t intend for the TVPRA — meant to protect victims of trafficking rather than open a loophole at the border — to have this effect, but it did.

When Judge Dolly Gee expanded the Flores settlement to include families of minors, too, and to say that they couldn’t be held longer than 20 days, the loophole got bigger. Anyone arriving with a kid stood a very good chance of getting into the U.S.

For the migrants, the goal was to get released into the U.S. If they were allowed into the country with a “notice to appear” and didn’t show up in court, generally we wouldn’t look for them. Even if they had an ankle bracelet or some other alternative to detention and violated the terms, it was unlikely that authorities would come find them. This is why detaining migrants at the border and then permitting them into the country for a future court proceeding became known as “catch and release.”

When the “zero tolerance” policy that drove family separations blew up in 2018, the floodgates opened up, and the numbers at the border exploded beyond our capacity to even minimally control them.

“Especially during the period of calendar year 2018 into early 2019 before the implementation of MPP,” says the former DOJ official, “we just have this massive crush of illegal immigration, and you get to a point where CBP is not even processing people the way you would expect. CBP is not holding them for a credible-fear screening with USCIS. They don’t even know if the migrants are going to seek asylum some day down the road. They’re just giving them a court date and releasing them into the interior of the United States because they were totally overwhelmed. And that’s a recipe for disaster — successful illegal immigration begets more illegal immigration.”

The administration watched the border, which Trump had insisted he would secure, dissolve into a crisis with seemingly no end in sight. That’s when everyone serious about the border realized, if they hadn’t already, that “there were fundamental changes that had to be made in thinking, even within certain parts of the administration, about how to do things at the border,” in the words of the former DOJ official.

There was a belief that DHS under Kirstjen Nielsen, even though it had done some good work, lacked the requisite urgency and creativity in dealing with the new surge. Nielsen was pushed out, and a change in leadership began at DHS that coincided with a new approach.

Every practice was examined and every legal authority reviewed to see how to put the system on a more rational basis. An official familiar with the issue says that the administration was “looking at all of the various laws that are on the books and saying, ‘Look, we’ve only been giving out the sort of benefits and not using all aspects of the law. Why don’t we just fully utilize all of the law, and it will get us what we need?’”

Changes large and small added up to a new, multi-pronged approach that made a difference.

Mark Morgan, who became acting commissioner of CBP in July 2019, recalls that at its peak, roughly 150,000 migrants were apprehended in a month, with more than 5,000 on some days. Then, by February 2020, prior to the pandemic, the flow had been reduced by about 75 percent, and families and unaccompanied children dropped precipitously. “Our in-custody numbers had gone from 20,000 to just over 3,000,” he says. “Our daily flow had gone from the height of 5,000 to just over 1,200. And at one point, it actually dropped below 1,000, which is a significant goal.”

An important change was how we handled asylum claims.

Reforming Credible Fear

The credible-fear interviews were an example of a process that had, over time, become distorted and spun off on its own, unconnected to the actual stipulations of law.

The practice had grown up that if there was the slightest conceivable reason to believe that someone feared going home because of persecution — even if we knew they’d come from democratic countries with no ethnic or religious persecution — the asylum officer would issue a positive finding of credible fear.

The way it was supposed to work, a migrant would present himself to a CBP officer, say he was afraid to return home and then perhaps within days get interviewed by an asylum officer with USCIS, who would then make a credible-fear determination. If the determination was positive, he could apply for asylum and would eventually go before an immigration judge.

In the interim, the migrant would be handed over to ICE, which, operating with very limited capacity, would determine whether he would be detained or released. (The migrant also might make a claim of fear while in ICE custody.)

At times, though, the authorities were too overwhelmed even to do the credible-fear interviews and were simply releasing all unauthorized family units they encountered at the border for lack of space to hold them.

If an interview happened, the finding was crucial. A positive finding of credible fear made it very likely that a migrant would be released into the U.S. It was nearly impossible for any asylum proceeding to be completed before the 20-day clock would run out on the detention of family units.

Even with single adults, it might be difficult to hold them long enough to complete the asylum process, and, if they were held, it took up beds and other resources when there weren’t any to spare.

All of this, says a former top DHS official, “obviously helped that push-pull factor. When you, again, get the word down back through Central America, ‘Hey, you come in and claim fear. You’re going to get to go wherever you want in the country.’”

As a practical matter, many asylum officers found the stories of the migrants sympathetic — understandably, since they wouldn’t have embarked on a dangerous journey to get to the United States if they weren’t desperate.

But the standards for asylum are clear, and set out in the law. Someone is supposed to be eligible only if he is targeted for persecution because of his race, religion, nationality, membership in a particular social group, or political opinion. Economic migrants, or people who fear domestic or gang violence, may be highly sympathetic, but aren’t legitimate candidates.

“We’re dealing with countries,” Cuccinelli says, “that the Left wants to treat like it’s the 1980s and there’s death squads down there.”

Accounts that alleged persecution often didn’t bear out. The former official familiar with the issue says, “What they typically found is that a lot of these stories, not all of them, but a lot of these stories were actually not true. They were actually fabricated, and they’re actually people who just wanted the economic opportunity of living in the United States.”

The administration updated the documents and training materials the asylum officers used in order to make the credible-fear standard more rational and more in keeping with a reasonable interpretation of the law.

It trained border agents, who didn’t share the overly accommodating institutional culture of the asylum officers, to conduct credible-fear interviews.

It did heat maps of the patterns of violence in Central American countries and got asylum officers to push migrants on why, if they allegedly feared to live in one city or locality in their home country, they couldn’t safely move to another.

It made asylum officers put into writing why a migrant couldn’t live anywhere in his home country, which entered more rigor into the process than the prior practice of checking a box.

For years, the positive-determination rate for credible-fear claims was over 70 percent, or as high as 90 percent, depending on how you count. This was a figure completely out of whack with the low rate of ultimate acceptance for asylum claims (many times, a migrant who passed the credible-fear test wouldn’t even actually apply for asylum). After the Trump changes, the rate fell below 30 percent.

This made a big difference. If a migrant got a negative determination, he would likely be removed within a matter of days, freeing up detention space for someone else to be held rather than released. And the more migrants were getting sent back home quickly, the less likely other potential migrants were to try to make the journey.

The Trump team also worked to shorten the time involved in the process as much as possible. It sought to get the period between a migrant’s saying he was afraid to go back home and the asylum-officer interview down to a day.

“We were trying to,” says the top former DHS official, “and I think we were very successful on this, move forward with expedited screenings for credible fear to get people into the immigration court process quicker, so that there would be a way to keep them detained and actually move through the system, which frankly allowed them to start their life faster — if they, in fact, did have a credible fear, if they were able to get asylum.”

Roberto, 37, from Honduras, who is in the Migrant Protection Protocols program, has his family’s court dates changed by U.S. Customs and Border Protection on the Paso del Norte International Bridge after court cancelations amid the coronavirus outbreak in Ciudad Juarez, Mexico, April 20, 2020. (Paul Ratje/Reuters)

A Success with Mexico

These changes alone weren’t sufficient. An important insight was that so long as immigrants were coming in large-enough numbers, they would overwhelm even a tightened-up system with better credible-fear standards and faster processes for removal. Only a more categorical approach would be equal to the magnitude of the problem, which is why a focus became the Migrant Protection Protocols with Mexico.

The irony is that for all that Trump banged on about Mexico paying for the wall during the 2016 campaign, his administration worked with the country extensively and fruitfully to stem the tide of migrants.

One of Trump’s early executive orders cited the authority in the Immigration and Nationality Act to make people stay in Mexico during their asylum proceedings.

The former DOJ official says, “There was a Board of Immigration Appeals decision in 1996 that said there was no clear authority for this practice, and so Congress came through the same year with new legislation and said, ‘Well, here’s the authority to do this if you want.’ Then no one used it in any meaningful way from 1996 all the way until 2017. Then the president comes through and says in his very first executive order on immigration, ‘I want you to start using this tool.’”

Because relatively few people released into the United States ever leave even with a judge’s order to do so, the crucial question is simply whether migrants get released into the United States in the first place or not, the former official continues, “so all the Border Patrol agents and all the ICE officers, they all understand that this was the game changer, but until President Trump came along, no one ever just wanted to do the hard work to put it into effect.”

Mexico wasn’t thrilled with the idea when it appeared in the Trump executive order, to say the least. DHS officials who traveled to Mexico City soon afterward got an earful from Mexican officials who pushed back hard. After that, says the former DOJ official, “the president’s order to use this authority kind of just sits there.”

It was in the fall of 2018, with numbers at the border soaring and Trump apoplectic, that the push to launch a “remain in Mexico” program was seriously revived. Trump threatened and cajoled Mexico to the table.

Under MPP, migrants would be briefly screened to make sure that they had no legitimate fear of staying in Mexico. Then they would be sent there, pending their proceedings in the U.S. When their court date would come up, they would go to a port of entry, and CBP would take them to a makeshift immigration court facility, the so-called tent courts.

The asylum-seekers would be on a screen with a judge. CBP would then return them to Mexico, and the process would repeat for however long it took to complete.

This removed the element of time pressure around detention that had so distorted the process previously. If an asylum-seeker in the U.S. was about to have his case denied and got a continuance from a judge, that might lead to his release regardless of the merits. With MPP, it didn’t matter — the asylum-seeker would remain in Mexico for the duration.

Getting the program underway was an involved process, from setting up the tent courts with space for attorneys and clients to speak privately, waiting rooms, and other office space, as well as the equipment for video feeds during the hearings; to securing the funding and making sure it comported with appropriations law; to getting contractors to transport the asylum-seekers to the hearings; to managing all the associated paperwork. Not to mention the complications of dealing with a foreign country.

The program started small, at one spot on the border, and then grew from there. For a period of time, the administration was aggressively pushing Mexico over almost every return; e.g., at a certain port of entry, the Mexicans would say they’d take 100 migrants back, and we’d say, “No, we want you to take 300.”

The Mexicans ended up cooperating. “The Mexicans have a general interest in not wanting their country used for this purpose,” says the top former DHS official. “To traverse, to have millions of people traverse their southern border and go straight up to the northern border and amass over there in these ways. So for them, there was certainly an economic incentive and a public-safety incentive to want to work with us.”

Mexico didn’t give the migrants the back of its hand — it offered work permits and other assistance.

The administration also worked closely with Mexico to encourage it to develop the capacity, and to deploy it, to apprehend smuggled migrants in Mexico.

Mark Morgan says we saw an “unprecedented increase in, not only their interior enforcement, but also enforcement along their southern border. You have, by the height in 2019, we’re seeing 40 to 50 large groups a month. By the time ’20 came around, none.”

The Trump team worked to expedite asylum proceedings, so a process that had often taken years could be compressed to a matter of months. It had immigration judges work on the basis of “last in, first out,” so new cases were dealt with quickly rather than going back and picking up cases that had already dragged on for years.

The former DOJ official characterizes the attitude behind the program, “You willingly just were there before you walked into the United States through Mexico, and you’re just going to wait there. We’ll do your hearing, and we’ll guide you through the process, and if you prevail in your claim, welcome to America. We hope you’ll be a productive member of society, and welcome to the family. But if you lose, then you lose.”

In addition, the administration issued a “third-country transit ban” saying that if a migrant entered the U.S. through the southern border, he had to apply for asylum in one of the countries he had transited, before he could apply in the United States. As a practical matter, this meant Mexico. The rule was ultimately blocked by the courts but was operative during a key time.

Mark Morgan says of MPP, “That policy single-handedly ended catch and release. Because back then it is, you grab a kid, and you are, because of the Flores Settlement Agreement and TVPRA, boom, you’re in the United States.” He continues, “With MPP, we’re able to end that.”

The number of family units began declining as did the number of unaccompanied children, though they weren’t part of MPP. The mix of migrants shifted closer back to the old norm, with single adults taking up a larger proportion.

“The family-unit crisis was solved, I think, almost entirely by the use of MPP,” says the former senior DOJ official.

At the end of the Trump administration, there were about 25,000 people enrolled in MPP.

Working with Central America

On top of this, the administration forged the so-called safe-third-country agreements with Northern Triangle countries.

The agreements made it possible to divert asylum-seekers to Central American countries other than their own, where they could apply for protection.

The legal basis for the program was straightforward. Under federal law, an alien showing up at the U.S. may apply for asylum unless, pursuant to a safe-third-country agreement with the U.S., he or she can be removed to a country “in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”

It’s terrible if someone genuinely fears for his or her life, but the official familiar with the issue says, “There is nothing in United States law that mandates that in a situation like that, that a person is entitled to resettle in the United States, as opposed to resettling in Mexico or Guatemala or El Salvador or Honduras or any number of other countries.”

Mark Morgan calls the way asylum-seeking has worked “forum shopping.” Instead of seeking asylum in the first country they traveled through, which is the standard internationally, migrants waited to make their claim in the United States, because, by and large, they weren’t escaping persecution, but seeking better economic prospects.

With the agreements with the Northern Triangle countries, the administration could, per Morgan, “one, ensure a pathway for those who had legitimate claims could actually seek relief and get assistance as fast as possible. And second, we shut down forum shopping.”

Again, Trump’s willingness to play hardball made diplomatic progress possible. “His willingness to use negative tactics,” Ken Cuccinelli says, “like pulling foreign aid money from the Northern Triangle countries, was clearly critical in getting them to take seriously the need to engage in cooperative efforts with us. But they did.”

The former senior administration official puts it this way: “Sitting down with the senior government leaders of Guatemala and telling them, ‘We’d like you to sign an agreement that will obviously be immediately leaked into your home press and that states that you’re going to take illegal immigrants from other countries that arrive in our country’ — do you have any idea how hard it is to get somebody to agree to that?”

Morgan calls the result “unprecedented agreement, unprecedented cooperation” with the Northern Triangle countries. It involved not just a willingness to allow asylum-seekers to apply in their countries, but information-sharing with the U.S. and other forms of cooperation.

The agreement with Guatemala was the first to get underway, while the onset of the pandemic kept the others from taking effect. The deal didn’t result in migrants getting sent in large numbers to Guatemala, but it did smoke out how serious migrants were about escaping alleged persecution in their home countries.

As the senior administration official explains, if a migrant from, say, Honduras said he had a credible fear of returning home, it would be explained that he could be sent immediately to Guatemala to make his asylum claim. At which point, the migrant would almost always think better of it and say he preferred simply to go back home to Honduras. (Usually, by the way, it is considered best practice to resettle an asylee in a country that is close to, and culturally similar to, his home country.)

This dynamic meant the agreements could have an outsized deterrent effect with little cost to the Northern Triangle countries. The former senior administration official says the agreements were “more powerful, in terms of achieving a secure border, than every piece of border-security legislation that’s been introduced in the last 10 years.”

A Customs and Border Protection vehicle patrols along a new section of the U.S.-Mexico border wall in El Paso, Texas, August 27, 2020. (Jose Luis Gonzalez/Reuter)

A Push on All Fronts

At the same time, the administration was pushing on every other front. “There wasn’t a single answer,” Cuccinelli says. “We had to employ a whole bunch of different techniques.”

At some ports of entry, DHS officials were in the practice of letting everyone in, while at others, they would engage in metering, or making asylum-seekers wait to make sure the process wasn’t rushed and resulting, in effect, in catch and release. 

The administration encouraged metering.

Back in 1996, Congress had created a process of so-called expedited removal to send illegal immigrants back home without extensive immigration-court proceedings. It was supposed to apply to illegal immigrants here less than two years, but, never utilized to its full extent, had been limited to illegal immigrants caught within 100 miles of the border less than 14 days after their entry into the country. 

The Trump team applied expedited removal more widely.

At the height of the border surge, when traveling with a child seemed a sure ticket into the United States, children were literally being rented out to make the dangerous trek. Sometimes, they would be sent back to Central America after making it to the United States, to make the trip yet again to get another group of migrants in at the border.

Homeland Security Investigations aggressively investigated the smuggling of children.

The administration stopped requiring ICE to come up with the travel documents for people being returned home, in a move to so-called “no doc” flights. Officials in the home government would confirm the identities of the people on the flights.

This made it possible to do rapid removals from Border Patrol stations, with charter flights nearby.

Of course, the pandemic upended everything. The administration invoked Title 42 of the Public Health Safety Act to exclude migrants altogether. The risk of people coming into the country with no screening, after traveling through multiple countries perhaps in large groups, became much greater during the pandemic. Border facilities weren’t built with a pandemic in mind, and with proper social distancing and other precautions it would have been difficult to hold any significant number of migrants. Finally, there was the risk to border agents to consider — they couldn’t work remotely.

Under Title 42, migrants would be turned around, with the ability only to claim that they couldn’t go back because of fear of torture, usually rejected.

“It allowed us to repatriate 85 or 90-plus percent of folks coming across the border in under two hours,” Cuccinelli says, “and we didn’t bring them into our facilities.”

It’s probably what most people imagine happening on the border all the time, which is that an illegal crosser who gets caught is returned home with dispatch.

Overall, the administration had created a tool kit with which it could address the border in multiple ways. “There were a number of pathways that were available to conclude cases quickly,” says the former DHS official. “And the word got out that we were no longer open for business, that it was not just presenting yourself at the border and getting in anywhere you want to go in the country.”

Biden Begins the Great Unraveling

The word getting out now is the exact opposite. Biden carved out an exception for minors in Title 42, and predictably there has been a surge of minors. He has ended MPP, and thus denied the United States a carefully crafted program to give deserving asylum-seekers full access to our asylum system, without permitting a swath of migrants into the United States regardless of the merits.

If the name of the game in border enforcement is keeping migrants out of the United States, because it will be difficult or impossible to remove them once again, Biden is moving toward giving up on enforcement.

The Trump team handed him a road map to controlling the border that he doesn’t want to learn from, or even acknowledge, and so the crisis is starting again, with worse likely to come.