At Cato Unbound: How Best To Reform Child Protective Services?

This month I’m participating in a Cato Unbound symposium on Child Protective Services and family rights. In its lead essay, attorney Diane Redleaf details some of the ways in which CPS agencies can arm-twist parents into so-called interim placements and safety plans that separate families with little or no judicial review.  Participant James G. Dwyer, in a response essay, takes a relatively positive view of the agencies’s work. My essay, by contrast, generally backs up Redleaf’s critique of CPS as a species of government enforcement agency gone wild: far too often, these agencies seize children from parents based on flimsy evidence, second-guess everyday parental behavior and decisions, or act on misguided Drug War zeal. 

Redleaf in her essay then goes on to raise distinctive objections about how the agencies negotiate with parents before a judge has ruled on their cases, which I paraphrase thus: 

…what sorts of policy response should apply to agencies’ practice of proffering to parents ostensibly voluntary interim placements and “safety plans”? What happens when parents regret—the next month, or the next day—having agreed to those conditions? Can they reopen the concessions they made, and how? Does it matter whether the agency has withheld information from them or menaced them with worst-case scenarios?

In my response essay, I argue that the problems with these practices are real but that legal attack on the voluntariness of interim plans is likely to be of at best limited helpfulness because our courts follow a strong presumption of enforcing settlements as written. More promising in the long run, I argue, may be to impose direct obligations on agencies to respect families’ autonomy without attacking the settlement process as such. “Safeguarding every family’s rights will, as one of its benefits, shore up families against unwise surrenders of their rights.”



Apprehended Border Crossers Spend an Average of 39 Hours in Detention: Evidence from 2014 and 2015

Most information on Border Patrol activities along the border come from data that has already been aggregated and compiled by Customs and Border Protection (CBP), Border Patrol’s parent agency.  We acquired the Border Patrol microdata for every apprehension on the Southwest Border from September 1, 2014, through August 31, 2015.  That period adds one month from the end of the 2014 fiscal year and chops off the last month of the 2015 fiscal year.  The microdata allow us to answer specific questions about Border Patrol apprehensions that aren’t otherwise displayed in tables by CBP.  This microdata identifies an individual’s time and date of apprehension and release, which allows us back out how long they were held in Border Patrol custody. 

There is wide variation between the number of hours that illegal immigrants apprehended by Border Patrol on the SW border stay in detention based on the region of the world where they are from (Table 1).  Caribbean illegal immigrants spend an average of 61 hours in detention, but there were only 561 of them detained in 2015. 

But the most striking numbers from Table 1 is the standard deviation column.  The standard deviation measures the dispersal of the data points.  If the standard deviation is low, then the data points are all clustered about the mean.  If the standard deviation is high, the data points are spread out over a wide period.  The standard deviation for the number of hours spent in detention for Central Americans and Mexicans is about two to three times greater than the next highest standard deviation, respectively.  This is likely because of the large number of asylum claims made by Central Americans and Mexicans in 2015. 


Table 1

Hours Detained on SW Border by Country of Origin

Region of Origin Average Number of Hours Standard Deviation Number of Illegal Immigrants
Caribbean 61.06 40.92 561
South America 47.51 32.25 4,548
Central America 44.13 105.53 130,156
Oceania 37.87 30.55 3
Asia 37.61 23.63 4,309
MENA 37.10 29.33 151
Europe/Canada 36.54 53.17 529
Mexico 35.65 144.89 186,547
Africa 23.34 28.05 56
Other/Unknown 14.72 12.36 6
All 39.26 128.31 326,866

Source: CBP Microdata.


Table 2 shows how many hours immigrants spend in detention by the border sector where Border Patrol apprehended them.  There’s no correlation between the number of hours an illegal immigrant is held for with the border sector in which they were apprehended, even controlling for the number of Border Patrol agents by sector.


Table 2

Hours Detained on SW Border by Border Region of Apprehension

Border Sector Average Number of Hours Standard Deviation Number of Illegal Immigrants
Laredo 65.97 72.13 35,509
Big Bend 52.71 236.44 4,492
Rio Grande 41.06 86.95 145,493
San Diego 35.00 89.30 26,415
Del Rio 31.07 313.42 18,294
Yuma 29.81 118.89 6,633
El Paso 29.80 261.71 14,046
El Centro 28.88 66.67 12,615
Tucson 28.52 104.15 63,369
All 39.26 128.31 326,866

Source: CBP Microdata.


Altogether, illegal immigrants apprehended along the SW border spent over 12.8 million hours in detention in 2015 – equal to about 1,464 years of detention.  If the daily cost of maintaining a guarded bed in Immigration and Customs Enforcement (ICE) detention facilities is the same as the cost for those detained on the SW border, then it cost over $50 million in 2015 to detain those 326,866 people for more than half a million days.  


Welcome to the Defense Download! This new round-up is intended to highlight what we at the Cato Institute are keeping tabs on in the world of defense politics every week. The three-to-five trending stories will vary depending on the news cycle, what policymakers are talking about, and will pull from all sides of the political spectrum. If you would like to recieve more frequent updates on what I’m reading, writing, and listening to—you can follow me on Twitter via @CDDorminey.  

  1. Today, Senator Rand Paul will take the floor to call for a vote on blocking arms sales to Bahrain—one of the countries waging war on Yemen. Senator Paul will be invoking the congressional oversight function included in the Arms Export Control Act (AECA). I’ll be watching the vote and covering its results on Twitter @CDDorminey. If you want more information on the conflict in Yemen, check out my colleague Emma Ashford’s work. For background on arms sales and congressional oversight, flip through the Risky Business report Trevor Thrall and I published earlier this year. 
  2. Incoming HASC Chair: Scale Back Plans for New Nukes,” Marcus Weisgerber. Representative Adam Smith is poised to become the House Armed Services Committee chairman and aims to “totally redo the Nuclear Posture Review” during his tenure. Cost is a motivating factor that Rep. Smith says the current plans haven’t taken seriously enough: “When you look at the needs we have in national security, the needs we have in the country and the $22 trillion debt, what they’re talking about in terms of totally rebuilding a nuclear weapons capacity in all pieces of the triad is way beyond what we can afford.” 
  3. Here’s what the Pentagon thinks the actual cost of a Space Force will be,” Aaron Mehta. Deputy Secretary of Defense Patrick Shanahan spoke to reporters this week and significantly decreased the government’s estimate of starting a Space Force. While the Air Force claimed it could cost as much as $13 billion, Shanahan’s team claims it can keep costs to the single digit billions, possibly as “low” as $5 billion. 
  4. Providing for the Common Defense,” National Defense Strategy Commission. This new report discusses the findings of a congressionally-mandated study on the 2018 National Defense Strategy (NDS) and a wide variety of emerging national security threats. The authors call for a vague yet drastic increase in defense spending, claiming it is out of their purview to estimate how much implementing the 2018 NDS will actually cost—just that current resource levels are insufficient. 

Better Late Than Never?

As I have written many times before, the opioid prescribing guidelines put forth by the Centers for Disease Control and prevention have been criticized for not being evidence-based. This has even caused the Food and Drug Administration to begin the process of developing its own set of guidelines.

In publishing the guidelines, the CDC emphasized they were meant to be suggestive, not “prescriptive,” pointing out that health care practitioners know their patients’ situations better than any regulators and should therefore individualize their prescribing to meet their patients’ unique needs. 

That has not prevented the majority of states from implementing opioid prescribing guidelines that place limits on the dose, amount, and length of time that doctors can prescribe opioids—usually restricting the dose of opioids to a maximum of 90 MME (morphine milligram equivalents) per day. According to the National Conference of State Legislatures at least 30 states have implemented such guidelines. These guidelines have caused many health care practitioners to return to the undertreatment of pain for which they were criticized in the 1980s and 90s. And it has driven many chronic pain patients to desperation as their doctors abruptly taper their pain medication or cut them off entirely.

The American Medical Association has gently criticized the misinterpretation and misapplication of the CDC guidelines in the past. Now two and a half years after the CDC published its guidelines, the AMA has taken a more adamant stand. This week, at the AMA’s interim meeting in Maryland, its House of Delegates resolved:

RESOLVED that our AMA affirms that some patients with acute or chronic pain can benefit from taking opioids at greater dosages than recommended by the CDC Guidelines for Prescribing Opioids for chronic pain and that such care may be medically necessary and appropriate. 

RESOLVED that our AMA advocate against the misapplication of the CDC Guidelines for Prescribing Opioids by pharmacists, health insurers, pharmacy benefit managers, legislatures, and governmental and private regulatory bodies in ways that prevent or limit access to opioid analgesia.

RESOLVED that our AMA advocate that no entity should use MME thresholds as anything more than guidance, and physicians should not be subject to professional discipline, loss of board certification, loss of clinical privileges, criminal prosecution, civil liability, or other penalties or practice limitations solely for prescribing opioids at a quantitative level above the MME thresholds found in the CDC Guidelines for Prescribing Opioids.

Sadly, the opiophobia-driven policy train left the station long ago. As an eternal optimist, my initial reaction is to think, “better late than never,” and to hope this new resolution will cause policymakers to reconsider their misguided policy. But the cynical voice inside me responds with a more negative cliché: “a day late and a dollar short.”




Immigration Application Denial Rates Jump 37% Under Trump

New data from the U.S. Citizenship and Immigration Services (USCIS), the agency that adjudicates immigration applications, show that denials have jumped significantly. The data for the first nine months of Fiscal Year (FY) 2018, which started in October 2017, show that denials for all manner of immigration benefits—travel documents, work permits, green cards, worker petitions, etc.—increased 37 percent since FY 2016.

As Figure 1 shows, the denial rate increased from 8.3 percent to 11.3 percent from FY 2016 to FY 2018. These statistics exclude citizenship applications and include all other immigration forms except for the Deferred Action for Childhood Arrivals and Temporary Protective Status programs, because they provide status to illegal immigrants, and President Trump has tried to cancel them almost completely. But the trends are similar regardless.

Figure 1: Denial Rate for Immigration Applications

Figure 2 details the number of denied applications by year, with the FY 2018 projection based on the first nine months of the year. On an absolute basis, FY 2018 will see more than about 155,000 more denials than FY 2016. 

This year has seen the highest denial rate of the years for which data is available since FY 2013 (see Table 1 below). Denial rates increased from FY 2016 to FY 2018 in 19 of the 26 benefits categories for which the information was available for all years. These include the most important benefits categories like those for requesting foreign workers, applying for green cards, and asking for authorization to work or travel.

Figure 2: Total Denials for Immigration Applications

Most dramatically, the rate of denial increased for advanced parole from 7.2 percent to 18.1 percent (Figure 3). Advanced parole gives immigrants on temporary statuses advanced permission to reenter the country after a temporary departure abroad. Skilled immigrants use advanced parole to travel abroad and avoid losing their pending green card applications.

Figure 3: Denial Rate for Advanced Parole Applications

The denial rate for I-129 nonimmigrant worker petitions increased from 16.8 percent to 22.6 percent from FY 2016 to FY 2018 (Figure 4). Employers use the I-129 to request a foreign temporary worker to perform jobs in the United States. Common categories include the H-2A for agricultural workers and the H-1B for high-skilled workers.

Figure 4: Denial Rate for I-129 Nonimmigrant Worker Petitions

The denial rate for employment authorization documents jumped 6 percent to 9.6 percent from FY 2016 to FY 2018 (Figure 5). Employment authorization documents (EADs) are awarded in a variety of contexts. USCIS approved nearly 2 million EADs in FY 2015. These include immigrants with asylum claims or adjustment of status applications pending more than 180 days. Students may work through Optional Practical Training program. The spouses of H-1B skilled workers can seek EADs in some circumstances, a practice that the Trump administration has announced plans to end.

Figure 5: Denial Rate for I-765 Employment Authorization Document Applications

The denial rate for I-485 employment-based adjustment of status to permanent residence (i.e. a green card) rose from 5.9 percent to 7.9 percent from FY 2016 to FY 2018 (Figure 6). These applications are primarily from employees of U.S. businesses who are in the United States in temporary statuses, primarily the H-1B.

Figure 6: Denial Rate for I-485 Employment-Based Adjustments to Permanent Residence

Family-sponsored applications were not spared either. USCIS rejected petitions for fiancé(e)s of U.S. citizens at a rate of 21 percent, up from 13.6 percent in FY 2016 (Figure 7). This is one of the only categories that saw the most significant increase in denials occur in FY 2017 rather than FY 2018. This could be based on the erroneous belief that the I-129F is more dangerous than other categories simply because the San Bernardino shooter was a fiancée of a U.S. citizen and used the K-1 visa category to enter the country. This coincidence hardly justifies cracking down on fiancées of U.S. citizens. 

Figure 7: Denial Rate for I-129 Petition for Alien Fiancé(e)

The denial rate for I-485 family-sponsored adjustments to permanent residence (i.e. a green card) increased from 10.2 percent to 13 percent from FY 2016 to FY 2018 (Figure 8). These applications are primarily from spouses and parents of U.S. citizens in the United States in temporary statuses (or possibly no status) who are seeking to become legal permanent residents.

Figure 8: Denial Rate for I-485 Family-Based Adjustments to Permanent Residence

Table 1 shows the denial rate for all benefit categories, but the ones above are the most common and important ones. President Trump has signed two executive orders that have been interpreted as a crackdown on legal immigrants, the “Buy American, Hire American” and “extreme vetting” orders. As I reported last year, USCIS dramatically increased the length and complexity of immigration forms last year. The agency has also made denying applications easier and has intimated that it would begin looking over the shoulders of adjudicators.

The administration is proposing sweeping new regulations that would only escalate these trends. The “public charge” rule would deny status to immigrants who the agency feels may use welfare in the future. Every immigration bill dealing with legal immigration that President Trump has endorsed would reduce the total numbers of legal immigrants. Clearly, the president’s goal is not just fewer illegal immigrants, but rather fewer immigrants of all kinds in the United States.

Table 1: Immigration Applications
Table 2: Immigration Applications Denials
Table 3: Immigration Applications Approvals
Table 4: Total Submitted Immigration Applications

What Americans Think about Birthright Citizenship

Last week I appeared on Hill.TV’s What America’s Thinking with Jamal Simmons to discuss what the public thinks about birthright citizenship. President Trump has proposed using an executive order to curtail birthright citizenship, which confers automatic citizenship on children born in the United States regardless of their parents’ nationality. Constitutional legal scholars say the president doesn’t have the authority to do this. What do Americans think about the value of birthright citizenship?

The Hill partnered with HarrisX to conduct a nationally representative survey of 1,000 registered voters November 2-3 to find out. First, the survey asked about a child born to a mother legally residing in the United States on a temporary visa: 57% said the child should be considered a U.S. citizen, 28% said the child should not be given citizenship, and 15% aren’t sure. 

What about children born to mothers residing in the United States illegally? Even still, a plurality (48%) support birthright citizenship for children born to mothers living in the U.S. illegally while 38% oppose and 14% aren’t sure. It would be interesting to see what Americans would think about children born to mothers who have a Green Card, but are not yet full citizens of the U.S.


Republicans’ opinions on birthright citizenship are far more impacted by the mother’s legal status than Democrats’ opinions. Sixty-two percent (62%) of Republicans oppose birthright citizenship for children born to mothers in the country illegally; however, opposition declines by 20 points to 45% opposed if the child is born to a mother in the U.S. on a temporary visa. Conversely, 18% of Democrats oppose if the mother is in the country illegally and 14% oppose if the mother has permission to be in the country. Thus, when thinking about birthright citizenship, Republicans tend to care more about the legal status of the parents than Democrats do. 

These results are consistent with a Pew Research Center poll that finds 57% of Americans oppose “changing the Constitution” such that children of illegal immigrants born the U.S. would not longer be considered citizens. 


On the program, I explained that birthright citizenship has become core to America identity and something that bolsters American exceptionalism.

Many argue that birthright citizenship is a major reason the United States has been so tremendous at assimilating immigrants from many different places. Since the country’s founding, America has successfully absorbed waves of German, Irish, Italian, and Polish immigrants, among many others. Today the U.S. continues to do so with new immigrants coming from Central and South America, East and Southeastern Asia, and Africa.

Further, birthright citizenship has distinguished the U.S. from many European counterparts who have not assimilated immigrants as well into their societies. Many European countries have primarily conferred citizenship to the children of current citizens, rather than to children born within their nations’ borders. For instance, it was only in 2000 that Germany allowed children with non-German parents to acquire citizenship if at least one parent had legally resided in the country for 8 years and if the child demonstrated a link to Germany such as attending or graduating from German schools. 

Why might birthright citizenship help with assimilation? Citizenship not only confers rights and benefits upon its citizens but also places duties upon them. With citizenship comes the implicit duty to be loyal to the country’s principles and values which encourages integration within the broader American community. Francis Fukiyama points out in his excellent book Identity: The Demand for Dignity and the Politics of Resentment, that before Germany liberalized its immigration laws in 2000, there could be second- and third-generation children of Turkish immigrants, born in Germany, speaking perfect German, and having never been to Turkey, and still not be considered German. Yet, ethnic Germans living in the former Soviet Union who spoke no German could be naturalized. It’s not hard to see why a child of Turkish immigrants might feel isolated and excluded from their surrounding community under such a regime.

It may be that Americans have observed the success of birthright citizenship in successfully integrating many immigrants from differently places, including their own grandparents, or great-grandparents and so on, into the American community. It has led most Americans to accept the notion that “we are a nation of immigrants.” This historical memory may help explain why most Americans continue to support birthright citizenship today.

Congress Uncapped Asylum. Agencies Covertly Re-Capped It

President Trump signed an order last week that bans asylum to people crossing the southwest border, but it exempts all migrants who “present themselves for inspection at a port of entry.” This provokes the natural question—why wouldn’t they all just do that? The answer is that without any public announcement, the government capped the number of asylum seekers that it will admit legally.

This policy is clearly in violation of the statute, which states that anyone can apply for asylum at a designated port of arrival (or anywhere else they want). More importantly, Congress specifically left the asylum category without a cap. This is different than nearly every other type of immigration, including refugees, which have limits. Indeed, there used to be a quota on how many asylees could adjust status to legal permanent resident status, but Congress repealed even that in 2005.

Congress unequivocally wanted no limits on asylum, yet the government has created one anyway. Homeland Security Secretary Kirstjen Nielsen told Fox News that the government is “metering” at ports of entry, limiting the number it will take in. When confronted about this at a press conference, she incoherently said both that they weren’t “turning away” asylum seekers but that they were telling them to go away and “come back.”

Internal documents released as a result of a lawsuit show that the Department of Homeland Security (DHS) told ports of entry that “if you determine that you can only process 50 aliens at a time, you will request that the [Mexican government] release only 50. If [Mexico] cannot or will not control the flaw, your staff is to provide the alien with a piece of paper identifying a date and time for an appointment and return [them] to Mexico.” It is illegal to return someone who has a credible fear of persecution.

DHS has stationed its agents at the exact U.S.-Mexico borderline in front of the port of entry, pushing anyone coming to request asylum legally back into Mexico. If immigrants make it onto U.S. soil, that’s supposed to entitle them to a hearing. But even when they cross the official line, officers ignore their pleas and tell them to go away. Trying to walk past them is a criminal offense.

In October 2018, the government admitted 4,177 asylum seekers in family units—that is 135 people daily—at ports. Across 48 U.S.-Mexico ports of entry, that amounts to 2.8 family units daily at each port. The most family units allowed at ports per day during the Trump administration has been 3.8. The unpublicized limit is then an average of between 2.8 and 3.8 per day.

Human Rights First researchers have reported that the government is currently admitting 2 or 3 families per day at certain entry points in recent days, though it may be more or less on any given day. But at the current average rate, it would take about 3 years for the administration to process at ports all the families who crossed between ports of entry in 2018.

Remember that these individuals are people who the government is telling to live homeless in a country that is not their own. In June, the New York Times reported that asylum seekers turned away at ports had to live on the Mexican side of the border for weeks, sleeping in “squalid” conditions and enduring 100 degree days. “We depend on strangers for food, for water, for everything,” one said. “I wanted to do everything legally, to ask for asylum in the proper way, but this is a setback I did not expect for us.”

Another told the Atlantic that she crossed the border illegally with her daughter solely because they “were turned away by U.S. Customs and Border Patrol at the Paso del Norte port of entry.” In other words, the policy encourages otherwise law-abiding people to break the law. Once they cross, their asylum claim is finally heard. Border Patrol arrested her and took away her daughter, while the Department of Justice criminally prosecuted her.

DHS complains about a lack of “resources” to process asylum seekers, which force it to turn away people at ports. But this claim is baseless. For one thing, its policy results in them needing to arrest, detain, and prosecute the tens of thousands who cross illegally between ports of entry—which the president’s memo admits is more expensive.

Moreover, the ports process more than a half a million people every day, a few hundred asylum seekers would barely be noticed. In any case, the Immigration and Naturalization Service had far fewer resources than DHS does today when Congress passed the asylum statute, and it didn’t include a “resource” exception.

President Trump’s policy is a fraud. He is simply pretending that legal ports of entry are valid options for asylum seekers when, in fact, his administration has closed them down.