Congress has three weeks — the deadline until President Donald Trump has threatened to shut down the government again, declare a national emergency, or both — to come to a deal on border security.
But if they’re letting Trump set the terms of the debate, they risk missing the crisis on the US-Mexico border.
Make no mistake — there is a border crisis. The US is seeing something genuinely unprecedented: large numbers of children and families, often in large groups, crossing the border without papers to turn themselves in to US authorities. The immigration enforcement system, not particularly well-equipped to handle vulnerable migrants without papers at all, is cracking under the strain. The gap between what’s happening and the government’s ability to deal with it is, by most definitions, a policy crisis.
According to Customs and Border Protection statistics released Thursday, Border Patrol agents have apprehended groups of 100 or more migrants traveling together on 53 occasions since the beginning of fiscal year 2019 in October. (In total, those 53 groups amounted to about 8,800 migrants.) Apprehensions of “family units” (really, individual parents and children) are nearly triple last year’s rates, and apprehensions generally increase in the spring. They dipped in early January, an apparent holiday season lull, but have since returned to the high levels of the past few months, according to DHS sources.
More than 95 percent of the people in these groups are traveling as families or are unaccompanied minors, and the overwhelming majority are from Central America. The rise of large-group apprehensions is thus the newest iteration of a trend that was already threatening to tip into crisis: the unprecedented numbers of “vulnerable” migrants, including children, families, and asylum seekers, in custody at the border.
Before the shutdown, there was growing bipartisan attention to the issue. But in the past month, the border debate has gotten trapped in Trump’s black-hole gravity. The president rambles on about crime and drugs and taped-up women; Democrats reply that actually, unauthorized border crossings have plummeted since 2001, and crime in border communities is low, and asylum seekers aren’t criminals.
Any alarm about the current situation at the border might seem to play into Trump’s hand. But the alternative is ignoring something that genuinely deserves the term “crisis.”
There is a legitimate humanitarian crisis at the border
On the night of December 6, more than 100 Central Americans (including an unknown number of children traveling with their parents) were held for seven hours in a concrete “sally port” — essentially a garage — at a remote Border Patrol station in Antelope Wells, New Mexico, on a desert winter night, because there was only one bus anywhere near the area and the nearest suitable facility to detain them was hours away.
One of those migrants, 7-year-old Jakelin Caal Maquin, died later that night — the first death of a child in CBP custody in more than a decade.
Later in December, 8-year-old Felipe Gomez Alonzo, who had already been in Border Patrol custody for five days — substantially longer than the 72-hour maximum any child is supposed to spend in CBP custody in anything but exceptional circumstances — was discharged from a hospital. He was held for more than seven hours at a cramped highway checkpoint not designed for any migrant (much less a child) to be held for any length of time. He, too, died — the following day, Christmas Eve.
While we know some details of the treatment of Caal Maquin and Gomez Alonzo leading up to their deaths, we know much less about the treatment and conditions of the thousands of children and families apprehended by Border Patrol agents over the past few months who have survived — even the 2,224 migrants who have been taken to hospitals by Border Patrol since December 22. (According to CBP statistics, a little over 5 percent of all migrants apprehended over that time have been taken to the hospital while in custody.)
But enough is known to conclude that the deaths in December weren’t aberrations, but the result of flaws in the system.
While human rights activists have raised concerns about Border Patrol treatment of migrants for years, current migration trends are forcing the system to a breaking point. The human costs are now all too apparent.
Overall, border apprehensions have plummeted since 2000 — as Democrats readily point out when rebutting Trump’s “crisis” claims. But the number of children and families apprehended in December is substantially higher than at any time since the government started monthly tallies in October 2011.
While we can’t know for certain how many people who came during the George W. Bush-era peak of unauthorized migration were children or families, estimates based on data going back to 2001 show that the number of migrants under 18 apprehended in 2018 likely approached its previous peak in the mid-2000s.
And during that period, very few of those children came with their parents — records from the time indicate the overwhelming majority of minors were “unaccompanied.” Now the majority are “accompanied” — meaning that the population of children and families now includes tens of thousands of adults per month as well. Taking that into consideration, it’s fair to surmise that there are more children and families coming to the US without papers than ever before.
The policy for dealing with unauthorized border crossers has also changed. In the mid-2000s and earlier, most people caught trying to enter the US illegally were quickly and informally returned to Mexico. When the US started formally deporting more and more unauthorized border crossers, they started detaining them until a formal deportation order was issued — or, for asylum seekers, until they’d passed a screening interview that could take weeks to schedule.
Not only does Border Patrol have to apprehend and process more families, but it now holds them in custody until Immigration and Customs Enforcement agrees to take them (for detention or further processing). Keeping immigrants in custody is supposed to be ICE’s job — but as the system gets backed up, it increasingly becomes CBP’s. And CBP has never had the resources or oversight for detention that ICE has.
The phenomenon of people coming and being apprehended in large groups — often in remote areas — is even more recent. The result isn’t just that Border Patrol agents have to deal with more children and families for more time than ever before. It’s that the areas of the border often least prepared for large groups of vulnerable migrants are now encountering larger and more vulnerable groups of migrants than Border Patrol has yet seen.
The shutdown diverted attention from the humanitarian crisis — but it’s still going on
To the extent that Democrats acknowledge these trends when talking about the border, they use them to say Americans shouldn’t be afraid of these migrants and that we shouldn’t close our doors to them.
But there’s also an immediate, more practical question: Does the US actually have what it needs to deal with the influx of migrant families?
Right now, the answer appears to be no.
Even before the deaths in custody — not to mention the shutdown — Customs and Border Protection Commissioner Kevin McAleenan was warning that the current setup for migrant children and families wasn’t sustainable.
The problem was both facilities and time. Temporary way stations like the one in Antelope Wells weren’t suited for anyone to be held there, much less children; even better-equipped facilities don’t always have food that meets the nutritional needs of children under 10.
Transferring migrants to better facilities (or ultimately to ICE custody), or to the hospital, meanwhile, takes time — each of the 2,000-plus recent hospital visits has taken almost nine Border Patrol agent-hours, which is time that can’t be spent transporting or processing other migrants.
Conversely, in an effort to clear room in detention facilities for families coming in, some families have been all but dumped at bus stations by federal agents — left on their own in a totally unfamiliar country, with no health insurance, no appropriate winter clothing, and no one there to tell them what to do next.
Both the Trump administration and congressional Democrats were focused intently on this problem in December, after two children died in CBP custody. Each side was blaming the other, but the attention still led to reform: the institution of standard medical checks for all children in custody, and a “surge” of humanitarian resources to the border.
Then two things happened. One was that over the first week of January, apprehensions plummeted — a dip that turned out to be temporary but that reduced the day-to-day urgency of the issue. The other is that the shutdown hardened into an urgent concern as it became clear 800,000 federal employees were going to miss paychecks.
Of course, many of those employees were Border Patrol agents, who worked unpaid throughout the shutdown as “essential” employees. Unlike Transportation Security Administration agents and air traffic controllers, Border Patrol agents didn’t have high levels of absences during the shutdown, but they were still attempting to learn a new medical protocol while dealing with the stress of working without pay. The Coast Guard units dispatched at the end of December to assist with medical screenings missed a paycheck as the shutdown dragged on, too. None of the resource problems — food, shelter, transportation — could get solved during the shutdown.
But the end of the shutdown just means a return to the situation that both parties agreed was unacceptable. Trump’s request for $800 million to address the care of children and families was rejected along with the rest of his border demands. And the three-week respite merely keeps the government funded at existing levels — which were set when the issue of children and families in custody was barely on anyone’s radar.
Congress may not agree on how to fix the crisis, but it’s not going away on its own
Despite the growing pre-shutdown consensus that the apprehension of children and families was at a crisis point, there were at least three distinct arguments as to exactly what the problem was.
Critics of the Trump administration, who responded to the deaths of Jakelin Caal Maquin and Felipe Gomez Alonzo by insisting on intensive investigations and document retention, appeared to assume the issue was neglect or mistreatment of children by federal agents.
Meanwhile, administration figures like McAleenan protested that Border Patrol agents were doing all they could — but without more money from Congress to address the needs of vulnerable populations, it wouldn’t be enough.
And the White House’s response to the deaths argued the crisis was really something else: the choice made by parents to bring their children to the US without papers, and the “loopholes” in federal law that required the federal government to release families from immigration custody while their immigration cases were pending.
It seems very plausible that the shutdown made all three of these issues worse. For more than a month, there was less oversight of agents (the DHS Office of Inspector General was understaffed due to the shutdown, too), fewer available funds to process migrants, and more pressure for quick releases.
While the Trump administration’s decision to keep families in detention by default upsets most activists, who point out it might be cheaper to monitor them in other ways, no one is enthusiastic about mass dumping of confused people. (After the last week of December, ICE appears to have stopped dropping off families at bus stations without warning, but there’s only so much that local nonprofits can do to care for the hundreds of people getting released.) Any alternative — such as requiring ICE to have a more robust relationship with nonprofits, or even help support their work financially — costs money and attention too.
Indeed, the fact that the government is only funded for three weeks makes it all the harder to plan any improvements or new initiatives, or even to spend as freely as the government normally would. None of these diagnoses of the crisis can be addressed now.
Unless Congress starts paying attention to them again.
In theory, Congress is supposed to spend three weeks addressing border security via a bipartisan conference committee. (Trump may have already undermined the conference committee over the weekend, by expressing doubt that they’ll agree on anything he wants to sign.) Trump has set the terms of that debate so far too. He demands $5.7 billion in physical barriers, and Democrats are expected to counter with a bill that spends the same amount of money on other forms of security — a “smart wall.”
But the actual crisis is more immediate — a question of who is coming over now and what is available for them when they do. It won’t get addressed unless Congress chooses to start (or resume) paying attention to it.