Topic: International Economics, Development & Immigration

90% of Border Crossers Aren’t Referred for Asylum Interviews

The government is implementing a new proposal that would ban asylum for immigrants coming to the United States through Mexico. It pins the uptick in border crossers on the asylum process, but the government’s statistics reveal that 90 percent of crossers in 2019 were not referred for an asylum interview at the border, and the highest share ever referred was just 19 percent in 2018.

In fact, the rate of referral was just 7 percent in March 2019. This strongly indicates that the asylum ban will not have its intended effects. Figure 1 compares the rate at which undocumented immigrants at the southwest border were referred for asylum interviews at the border—called credible fear interviews—for each year from 2010 and 2019 as well as March 2019—the most recent month available. In no year has more than one in five immigrants stopped either at or between ports of entry entered the asylum process from the border.

Figure 1: Credible Fear Share of Immigrants Detained at the Southwest Border

The pattern is not significantly different for immigrants from Central America’s Northern Triangle—Guatemala, Honduras, and El Salvador. The highest percentage of credible fear claims was just 30 percent in 2016, and the rate for 2019 is 9 percent. March 2019 was actually just 6 percent. In other words, at the border at least, the asylum ban will have very little effect on most Central American crossers.

Figure 2: Credible Fear Share of Northern Triangle Immigrants Detained at the Southwest Border

The reason that the share isn’t higher could be that the government often simply fails to record statements of fear as documented in the U.S. Commission on International Religious Freedom 2016 report. Many immigrants may simply not understand asylum law and so turn themselves in without understanding that they need to make a claim. About 8 percent of arrests in 2019 were unaccompanied children who aren’t subject to the credible fear screening process.

The reason for the dramatic falloff in 2019 is that Border Patrol decided to start releasing families without referring them for a credible fear interview at all because it lacked the capacity to hold them, and the Flores agreement requires their release after 20 days anyway.

Whatever the reasons, the bottom line is that an asylum ban will not deter many immigrants from coming to the United States in part because—at the border at least—it won’t affect many of them. Of course, once they enter the court system, a blanket ban on asylum will absolutely harm them by entirely eliminating the chance to receive asylum. About one in five asylum applicants would otherwise win their cases. It will likely trigger the deportation of those real asylees but without any reduction in immigration flows.

Sen. Paul’s BELIEVE Act Raises Skilled Immigration Without Tradeoffs

Today, Sen. Rand Paul introduced the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act (S. 2091). The BELIEVE Act would solve most of the major issues with skilled immigration in one piece of legislation. Altogether, the bill would increase green cards (which grant permanent residence) for employment-based immigrants by nearly fourfold, and it does so without making any changes that would injure other categories of legal immigration.

The long-term economic and fiscal benefits of this bill are difficult to overstate. The National Academy of Sciences (NAS) estimated in 2016 that the lifetime net present value of the average immigrant with a college degree to all levels of government was between $210,000 and $345,000 (Table 8-14). For those with more than a bachelor’s degree, the NAS estimate was between $427,000 and $654,000.

The BELIEVE Act would do more to move the United States toward a merit-based system than any other legislation introduced this congress. No legislation since the 2013 immigration reform bill that passed the Senate would increase skilled immigration more than this bill. A fourfold increase in employment-based permanent immigration would bring the United States more in line with the Canadian system, though Canada would still allow about twice as much economic legal immigration per capita than the United States and a higher rate of legal immigration overall.

Here are the specific elements of the bill:

  • Ends the per-country limits on green cards for employment-based immigrants (p. 2). This is the same change as the Fairness for High-Skilled Immigrants Act, which passed the House yesterday (H.R. 1040). Right now, the law states that nationals of no single country can use more than 7 percent of the green cards unless the green cards would go unused. If the cap is reached, nationals of other countries get to bypass them in line and receive a green card ahead of those who applied earlier. This change would make every foreign worker wait in the same line and so face the same wait times.As a result of the country limits, Indian employees of U.S. businesses receiving green cards under the EB2 or EB3 categories in 2018 waited a decade while everyone other than Chinese applicants waited less than a year. If the country caps remain, Indians who are applying today for an EB2 or EB3 green card face about a half century wait and roughly 50,000 will die without seeing a green card. The per-country limits also inadvertently force immigrants with the highest wage offers (Indians, again) to wait much longer than others.
  • Increases the limit on green cards for employment-based immigrants from 140,000 to 270,000 (pp. 1-3). This increase would double the caps for the first through third preference categories (mainly employees of U.S. businesses) as well as the fifth preference category for major investors in U.S. enterprises. The worldwide limits have not increased since 1990 when the U.S. economy was half the size that it is today, and most of the major tech companies did not exist or were in their infancy. About three quarters of the Fortune 500’s largest companies in 1990 have been replaced. This update reflects the changes in the economy since 1990.
  • Exempts spouses and minor children of employment-based immgirants from the limit (p. 3). This change accords with the actual statute as it exists today, but this legislation would explicitly require the government not to count them against the quotas. About half of all green cards issued under the employment-based categories are actually used by spouses and minor children. It makes no sense to reduce the quota on workers simply because the worker is married or has a child. In other words, this would further double the employment-based cap. As a result, these two changes would end wait times for all immigrants in a very short period of time.
  • Exempts “shortage occupations” (currently nurses) from the limit (pp. 3-4). If the Department of Labor (DOL) currently lists an occupation as a shortage occupation, employers may hire foreign workers on green cards without the normal burdensome labor certification process. So far, DOL has listed only two occupations as shortage occupations: nurses and physical therapists. The BELIEVE Act would exempt shortage occupations from the green card limit entirely. This change is important because nurses are currently ineligible for H-1B high-skilled visas, which means that the only way for them to get a foot in the door of a U.S. business is a green card. There are not precise statistics from the government on the number of foreign nurses, but it is likely about 7,000. While this would immediately benefit nurses and physical therapists, this change would also allow DOL to exempt occupations in future years if it updated its regulations.
  • Creates uncapped green card category for children of legal temporary workers (pp. 4-5). Under current law, skilled workers who enter on temporary worker visas can bring with them their spouses and minor children, but when their children turn 21, they “age out” of eligiblity and either have to leave the country or find a new visa for themselves. They are in a very similar situation to the Dreamers in DACA who grew up in the United States from a young age but whose temporary status can expire.Section 4 of the legislation would grant a green card to any foreign graduate of a U.S. unviersity who ever entered as a child of an E, H, or L temporary worker and lived in the United States for an aggregate period of at least 10 years. This language would even include some children who have already been forced to self-deport. I have previously written about the huge fiscal benefits that these children would provide to the United States but also about how the Dream Act excludes them by requiring applicants to be in the country illegally.
  • Provides employment authorization to spouses and minor children of temporary workers (pp. 5-6). As mentioned above, the law allows temporary workers to bring with them their spouses and minor children, but it doesn’t explicitly authorize them to work. The BELIEVE Act would specifically require the government to issue an employment authorization document to the spouses and children of E, H, or L temporary workers. This would provide huge economic benefits to the United States by incorporating a large and talented group of workers into the economy.
  • Provides employment authorization and legal status while waiting for a green card (pp. 7-8). Under current law, it can be very difficult for skilled workers waiting for a green card to change jobs without risking one’s status. This bill would grant employment and travel authorization “incident to status,” meaning that they wouldn’t need to apply for a new set of documents and that the authorizations would remain valid until a visa becomes available. Given the other fixes in this bill, this change is not as consequential as it would otherwise be because this bill would eliminate the backlog for green cards entirely. As a result, no employment-based immigrant would need to wait due to the quotas and be forced to take advantage of this provision. Nonetheless, it is a safeguard against workers being stuck with a single employer during their waiting periods.

I have written about nearly all of these changes in my posts: Why the Legal Immigration System Is Broken: A Short List of Problems, Ten Irrational and Infuriating Aspects of U.S. Legal Immigration, and elsewhere. There are a couple of problems with skilled immigration that the bill doesn’t address—including the outdated H-1B limit and the burdensome and nonsensical labor certification process for employers—but overall, the legislation would make the United States far more competitive for foreign talent than current law and prevent the removal of hundreds of thousands of skilled workers. This legislation would benefit the U.S. economy enormously.

H-2 Visas Reduced Mexican Illegal Immigration

Government data for the month of June show a substantial decrease in the number of immigrants apprehended along the Southwest border.  Much of this decline is probably due to extra Mexican immigration enforcement prompted by President Trump’s threat of imposing tariffs on Mexican imports if they don’t reduce the surge of Central Americans from the Northern Triangle.

Lost in all of this debate over the Northern Triangle migrants arriving at the border is that fact that Mexican arrivals have collapsed in recent years.  If we understand what caused the collapse in Mexican arrivals, then the government should apply that lesson to halt the flow of Northern Triangle illegal immigrants and asylum seekers.  The vast increase in the number of H-2 guest worker visas issued to Mexicans can explain a large percentage of the decrease in Mexican illegal immigrants.  Increasing the numbers for Northern Triangle migrants will likely have a similar negative effect on their arrivals.

Figure 1 shows the tradeoff between the number of Mexicans apprehended on the Southwest border and the number of H-2 visas issued to Mexicans from 2000-2018.  There is a clear negative relationship between the two variables. 

 

Figure 1

Apprehensions of Mexicans on the Southwest Border and H-2 Visas Issued to Mexicans

 

Source: U.S. Department of State and U.S. Border Patrol. 

 

Figure 2 is similar, but instead shows the number of Mexican apprehensions per Border Patrol agent and the number of H-2 visas issued to Mexicans.  Figures 1 and 2 are very similar, but the drop off in Mexican apprehensions is a little faster when the number of Border Patrol agents is controlled for in Figure 2.

 

Figure 2

Apprehensions of Mexicans Per Border Patrol Agent on the Southwest Border and H-2 Visas Issued to Mexicans

 

Source: U.S. Department of State and U.S. Border Patrol. 

 

Figures 3 and 4 show the strong negative relationship between the number of Mexican apprehensions and the number of H-2 visas issued to Mexicans, where the latter figure controls for the number of Border Patrol agents and the former does not.

 

Figure 3

Apprehensions of Mexicans on the Southwest Border and H-2 Visas Issued to Mexicans

 

Source: U.S. Department of State and U.S. Border Patrol. 

 

Figure 4

Apprehensions of Mexicans Per Border Patrol Agent on the Southwest Border and H-2 Visas Issued to Mexicans

 

Source: U.S. Department of State and U.S. Border Patrol. 

 

Table 1 are the results of a regression where the dependent variable is the number of Mexicans apprehended on the Southwest border and the independent variables are the number of H-2 visas issued to Mexicans and the number of Border Patrol agents per year, all logged.  Independent variables are those that seek to explain variation in the dependent variable, so we are trying to see if changes in the number of apprehensions is correlated with changes in the number of H-2 visas and Border Patrol agents.  Since we expect serial correlation to be an issue in these time series, we ran Breusch-Godfrey tests for serial correlation for each model.  In both cases we find evidence for serial correlation in the regression residuals, therefore we compute Newey-West standard errors as a correction. 

From 2000-2018, a 1 percent increase in the number of H-2 visas for Mexicans is associated with a 1.04 percent decline in the number of Mexicans apprehended on average.  At the same time, a 1 percent increase in the number of Border Patrol agents is correlated with a 1.4 percent decline in the number of Mexicans apprehensions.  If there is a causal relationship between the increase in the number of Border Patrol agents and decline in apprehensions, it is due to deterrence.  Both findings are significant at the 1 percent level.  These are both consistent with other findings, but it’s important to note that the median starting salary for a Border Patrol agent is $55,863, they take about a year to train, and private firms are having a difficult time hiring more when the unemployment rate is so low

If the goal is to get control of the border by cutting illegal immigration, it is much simpler and cheaper to issue more H-2 visas than to hire more Border Patrol agents.  Since H-2 visas increase economic production in the United States and Border Patrol agents decrease it by consuming taxpayer resources that would otherwise be used by the private sector, H-2 visas have been a much more cost-effective way to cut Mexican illegal immigration than hiring more Border Patrol agents.

These results imply that, for the year 2018, an additional 2,426 H-2 visas issued to Mexicans would have cut the number of illegal Mexican immigrants apprehended by 1,584 – on average.  The total cost to taxpayers of that would be zero, with an increase in total tax payments because the H-2 workers would provide taxable goods and services in the United States.  On the other hand, for the year 2018, these findings imply that hiring an additional 166 Border Patrol agents would have cut the number of Mexican apprehensions by 2,132 that year – at a total additional salary cost of $9,277,727 that year.  American taxpayers can either pay $4,353 per additional Mexican apprehension in extra Border Patrol wages – which doesn’t include any of the other large costs of immigration enforcement – or decrease the numbers by issuing more H-2 visas with a net-positive fiscal impact. 

 

Table 1

Apprehensions of Mexicans on the Southwest Border and H-2 Visas Issued to Mexicans

 

 

Table 2 is the same regression as described above, except the dependent variable is the logged number of Mexican apprehensions per Border Patrol agent and the only independent variable is the logged number of H-2 visas for Mexicans.  A 1 percent increase in the number of H-2 visas for Mexicans cuts the number of apprehensions per border patrol agent by 2.2 percent.  These regressions are all significant at the 1 percent.  We also ran the regressions for Tables 1 and 2 that included the U.S. unemployment rate as a control variable, but it didn’t have much of an effect.

 

Table 2

Apprehensions of Mexicans Per Border Patrol Agent on the Southwest Border and H-2 Visas Issued to Mexicans

 

 

For those who think that the Northern Triangle migrants apprehended on the Southwest border are asylum seekers, these findings will be largely irrelevant.  If people are coming because their lives are threatened, then an expansion of H-2 visas for them won’t have much of an effect on the number of asylum seekers arriving at the border.  If, on the other hand, you believe that the flow of people from the Northern Triangle is largely driven by economics, then you should support a vast increase in the number of H-2 visas for workers from the Northern Triangle – just like David North from the Center for Immigration Studies does.

Importantly though, the government should not increase the number of H-2 visas for those from the Northern Triangle by decreasing those available to Mexicans.  That would only increase Mexican illegal immigration.

More H-2 visas for Mexicans cheaply and effectively cut the number of illegal Mexican immigrants coming over the border without the large and recurring taxpayer cost of hiring more Border Patrol agents.  The government should at least try to expand the number of H-2 visas to workers from the Northern Triangle, perhaps by exempting them from the H-2B numerical cap, before taking further costly actions to increase border security.   

Decline in June Border Patrol Apprehensions Tracks Prior Years’ Patterns

Border Patrol apprehended 94,487 immigrants in June, according to a leak to the Washington Examiner. This constitutes a 29 percent decline compared to the 132,887 immigrants received in May. Nonetheless, apprehensions in June were higher than every month from FY 2009 to 2019 except the last two, April and May 2019 (Figure 1), and nearly three times the level in June 2018. They were also higher than March 2019, when the agency described nearly 93,000 apprehensions as a “system-wide emergency.”

Figure 1

The June decline is similar to declines almost every summer since the year 2000. The only exception was the short-lived “Trump effect” in 2017. Migrants moved up their crossing dates to before his 2017 inauguration and others stayed away until they realized little had changed. This caused numbers to rise throughout the year for the first time. Every other June saw declines in apprehensions.

Excluding 2017, the average decline from May to June for fiscal years 2000 to 2019 was 20 percent. The decline in 2019 was 29 percent (Figure 2). Three other years in the 20 years of available data had larger declines in June. The most recent was 2010, when apprehensions fell 30 percent. From May to July, the average decline was 25 percent. Six other years had apprehension declines from May to July above 29 percent. The most recent was 2014, when apprehensions fell 33 percent.

Figure 2

The seasonal declines are mostly the result of rising temperatures that make crossings much more dangerous. In 2019, however, June’s drop was larger than the average over the last two decades, which could imply that some other factors made it larger than expected. The most likely culprit is increased enforcement by Mexican authorities.

Indeed, June 2019 saw an increase in migrant apprehensions in Mexico from 23,419 in May to 29,153 in June. But that increase would explain just 15 percent of the drop in apprehensions. One might think that the increase had a deterrent effect on other new arrivals, but if Mexican apprehensions have a deterrent effect, it is a recent phenomenon. From January to May 2019, Mexican apprehensions increased by 175 percent, and U.S. apprehensions still increased by 177 percent.

Figure 3

Some deterrence, either from the Mexico’s interdiction or the U.S. Border Patrol’s inhumane treatment of immigrants, may have influenced the numbers coming to the border in June, but only very modestly. The most important factor by far was the weather. If this is the case, the flow will return as temperatures drop unless something changes. Congress needs to reform legal immigration to make illegal migration unnecessary.

Illegal Immigrants – and Other Non-Citizens – Should Not Receive Government Healthcare

Last week during one of their debates, all Democratic primary candidates supported government health care for illegal immigrants. This type of position is extremely damaging politically and, if enacted, would unnecessarily burden taxpayers for likely zero improvements in health outcomes. I expect the eventual Democratic candidate for president to not support this type of proposal, but it should be nipped in the bud.

After the debate, Democratic candidate Julian Castro argued that extending government health care to illegal immigrants would not be a big deal. “[W]e already pay for the health care of undocumented immigrants,” Castro said. “It’s called the emergency room. People show up in the emergency room and they get care, as they should.” It is true that some illegal immigrants use emergency room services thanks to the Emergency Medical Treatment and Labor Act and to Emergency Medicaid, but Castro leaned heavily into a stereotype often used by nativists. According to a paper published in the journal Health Affairs, illegal immigrants between the ages of 18-64 consumed about $1.1 billion in government healthcare benefits in 2006 – about 0.13 percent of the approximately $867 billion in government healthcare expenditures that year. That’s a fraction of the cost that would be imposed on American taxpayers by extending nationalized health care to all illegal immigrants. So, with all due respect to Mr. Castro, we do not already pay for their health care just because some illegal immigrants visit emergency rooms at government expense.      

One of the reasons why immigrants individually consume so much less welfare than native-born Americans is that many of them do not have legal access to these benefits. Cato scholars have proposed making these welfare restrictions even stricter to deny benefits to all non-citizens and to not count work credit toward entitlements until immigrants are naturalized citizens – what the late Bill Niskanen called “build a wall around the welfare state, not around the country.”

Many American voters are concerned about immigrant consumption of welfare benefits. In a 2017 poll, 28 percent of Americans agreed with the statement that “Immigration detracts from our character and weakens the United States because it puts too many burdens on government services, causes language barriers, and creates housing problems [emphasis added].” That level of concern exists under current laws that restrict non-citizen access to benefits and even chill eligible non-citizen participation. I’d expect that poll result to worsen if new immigrants, especially illegal immigrants, were put on government health care program.

Extending government health care to illegal immigrants and other new immigrants would probably not improve healthcare outcomes for immigrants. According to the wonderful The Integration of Immigrants into American Society report published by the National Academies of Sciences, immigrants already have better infant, child, and adult health outcomes than native-born Americans, while also having less access to welfare benefits like Medicaid. Immigrants also live about 3.4 years longer than native-born Americans do. Illegal Mexican immigrants had an average of 1.6 fewer physician visits per year compared to native-born Americans of Mexican descent. Other illegal Hispanic immigrants made an average of 2.1 fewer visits to doctors per year than their native-born counterparts.  Illegal immigrants are about half as likely to have chronic healthcare problems than native-born Americans. Overall per capita health care spending was 55 percent lower for immigrants than for native-born Americans. 

Immigrants also lower the cost of other portions of the health care system. In 2014, immigrants paid 12.6 percent of all premiums to private health insurers but accounted for only 9.1 percent of all insurer expenditures. Immigrants’ annual premiums exceeded their health care expenditures by $1,123 per enrollee, for a total of $24.7 billion. That offset the deficit of $163 per native-born enrollee. The immigrant net-subsidy persisted even after ten years of residence in the United States. 

From 2002-2009, immigrants subsidized Medicare as they made 14.7 percent of contributions but only consumed 7.9 percent of expenditures, for a $13.8 billion annual surplus. By comparison, native-born Americans consumed $30.9 billion more in Medicare than they contributed annually. Among Medicare enrollees, average expenditures were $1,465 lower for immigrants than for native-born Americans, for a difference of $3,923 to $5,388. From 2000 to 2011, illegal immigrants contributed $2.2 to $3.8 billion more than they withdrew annually in Medicare benefits (a total surplus of $35.1 billion). If illegal immigrants had neither contributed to nor withdrawn from the Medicare Trust Fund during those 11 years, it would become insolvent 1 year earlier than currently predicted – in 2029 instead of 2030.

American taxpayers should not have to pay for the health care costs of other Americans, let alone for non-citizens. For those reading this post who are very concerned about the well-being of immigrants, think of what would happen to public support for legal immigration if welfare benefits were extended in this way.  Immigrants come here primarily for economic opportunity, not for government health insurance. They tend to be healthier than native-born Americans and lower the price of health care for others as a result – but the point would likely change if the laws were different. Let’s not build public support for reducing legal immigration, or increase reluctance to expand it, by extending government health care, at enormous public cost, to people who don’t need it.

77% of Drug Traffickers Are U.S. Citizens, Not Illegal Immigrants

When people think of drug smugglers, they often imagine illegal immigrants sneaking into the United States across the southwest border. But the reality is that the vast majority of drug smuggling occurs at ports of entry (including airports), and the vast majority of traffickers are U.S. citizens. According to data from the U.S. Sentencing Commission, U.S. citizens had 77 percent of federal drug trafficking convictions in 2018. This percentage has grown from 69 percent in 2012. As Figure 1 shows, the share of drug traffickers who were illegal immigrants fell from 21 percent in 2012 to 16 percent in 2018.

Bar Chart

The reason that drug traffickers are largely U.S. citizens is because most drug trafficking occurs at ports of entry because most drugs—other than marijuana—are easier to conceal in legal luggage than while crossing the Rio Grande or the desserts in Arizona. Figure 2 shows the location where Customs and Border Protection seizes drugs by drug type. Port officers seized between 80 and 90 percent of every major drug type except for marijuana. Even there, officers at ports made nearly half of all the seizures so far in 2019.

Congress should not treat illegal immigrants as if they dominate drug trafficking nor should it focus drug interdiction resources between ports of entry where little drug trafficking takes place. The only thing that has reduced drug trafficking at all has been legalization of marijuana at the state level, which shifted supply away from Mexico and to the United States.

Note on comparisons: While 16 percent of trafficking convictions is about five times illegal noncitizens’ share of the U.S. population, this is not an appropriate comparison because the criminal offense inherently involves movement between two countries, so the relevant population includes people residing on both sides of the border. This means that the potential pool of undocumented noncitizen drug smugglers is vastly greater than the 10.5 million illegal residents already living in the United States.

Any of the 7.5 billion undocumented noncitizens around the world could decide tomorrow to attempt to bring drugs into the United States. Only 2,910 were convicted of doing so. That’s 0.00004 percent of all undocumented noncitizens worldwide. By comparison, 14,146 of the approximately 310 million U.S. citizens did so or 0.005 percent.

Obviously, this exercise doesn’t really tell us much, but the bottom line is that these conviction figures cannot be used to say how likely it is for undocumented noncitizens who are in the United States to be convicted a drug trafficking offense. That is not the point of this post. The point is to dispel the myths that undocumented noncitizens control most drug trafficking to the United States and that traffickers rely primarily on illegal immigration between ports of entry to bring drugs to this country. 

-Update added 7/8/2019

Are CBP’s Filthy and Inhumane Immigrant Detention Camps Necessary?

The Office of Inspector General (OIG) for the Department of Homeland Security (DHS) published a report about detention facilities operated by Customs and Border Protection (CBP) yesterday describing “dangerous overcrowding and prolonged detention of children and adults in the Rio Grande Valley.” This report came just over a month after DHS OIG’s May 30 report on “dangerous overcrowding” in El Paso.

What are the conditions in CBP’s detention camps?

Across the entire border, CBP was detaining from May to June between 4 and 5 times as many people as its facilities were designed to hold. It is impossible to list here everything that the OIG reports exposed, but here are some of what they found:

  • A cell with a maximum capacity of 35 held 155 detainees
  • A cell with a maximum capacity of 8 held 41 detainees
  • Detainees were wearing soiled clothing for days or weeks.
  • Children at three of the five Border Patrol facilities visited had no access to showers
  • Most single adults had not had a shower in CBP custody despite several being held for as long as a month
  • Some single adults were held in standing room only conditions for a week
  • Detainees standing on toilets in the cells to make room and gain breathing space, thus limiting access to the toilets
  • A diet of only bologna sandwiches. Some detainees on this diet were becoming constipated and required medical attention.
  • Standing-room-only conditions for days or weeks.

The OIG found that hundreds of children had been detained in these conditions for more than a week. Dozens of children who were under the age of 7 were held for over 2 weeks. Adults were being caged for a month in unsanitary conditions that were spreading illness. Infamously, the Department of Justice is defending these conditions by arguing that a “safe and sanitary” requirement does not require sleep, toothbrushes, or soap for children. CBP stashed families outside sleeping on the ground under a bridge for days as they were “bombarded with pigeon droppings.” When that was discovered, CBP hid what observers are calling “human dog pounds” elsewhere—again, outside in 100+ degree temperatures.

Other documentation of the depraved treatment elsewhere has come to light. Children told a federal court that infants are being forced to wear “clothing stained with vomit.” Lawyers who inspected the conditions told the New Yorker that during a lice outbreak, Border Patrol had children sharing combs and then when one of these combs was lost, the agents took away their blankets and mats as punishment. A doctor received access to a facility only after a flu outbreak that Border Patrol agents failed to contain had sent five infants to the hospital. Her visit found “extreme cold temperatures, lights on 24 hours a day, no adequate access to medical care, basic sanitation, water, or adequate food.”

Are CBP’s detention conditions a problem?

Yes. CBP has reported the deaths of six children so far this fiscal year after no children had died in the last decade. At least four other adults have also died this fiscal year. Another man committed suicide last year after Border Patrol took away his child and forced him into a detention facility. The conditions are rapidly spreading diseases between detainees, and the OIG found that this was also leading to illnesses among the agents themselves. Border Patrol told the OIG that it believes that holding people in these conditions “could turn violent.” Some agents are even retiring or quitting to avoid the situation. Agents told OIG that the situation is “an immediate risk to the health and safety not just of the detainees, but also DHS agents and officers.”

More fundamentally, the detention conditions are a monstrously unjust way to treat peaceful people. Violent felons and murderers receive better treatment in every state than CBP’s treatment of immigrants and asylum seekers.

Are CBP’s detention conditions violating its own standards?

Yes. CBP’s “Transport, Escort, Detention, and Search” (TEDS) standards provide that showers should normally be provided to children within 48 hours. TEDS standards require children and pregnant women receive at least two hot meals per day and that all detainees not be held in “hold rooms or holding facilities” for more than 72 hours. The OIG found children without any access to a shower at all, even though nearly 30 percent had already passed a 72-hour threshold for release and that they received no hot meals until OIG showed up. It found that the agency also violated a requirement that the fire marshal limit on cell occupancy not be exceeded.

Are CBP’s detention conditions violating the law or the Constitution?

Probably. The William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 requires that CBP transfer unaccompanied children (i.e. children without a legal guardian) to shelters run by Office of Refugee Resettlement (ORR) within 72 hours except in “exceptional circumstances.” Moreover, the Flores agreement—which is a court settlement agreement enforced by the District Court for Central California—also requires that all children not be detained for more than 3 days except in the case of an “influx” in which case the standard is “as expeditiously as possible.”

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