Ending Court-Ordered Catch and Release

November 8, 2018

‘IRLI advises Homeland Security on new regs to supersede Flores settlement

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a public comment analyzing high-profile emergency reforms proposed by the Departments of Homeland Security (DHS) and Health and Human Services (HHS). The reforms will curtail the disastrous practice of catching and then releasing the throngs of illegal aliens under 18 who have been flooding across the U.S.-Mexico border. The Notice of Proposed Rulemaking laying out these reforms has gotten a staggering number of comments. But out of more than 63,000 submissions, IRLI’s appears to be the only full legal analysis in support of the administration.

Since 2014, the illegal entry of hundreds of thousands of alien minors, primarily from the Central American “Northern Triangle” nations of Guatemala, El Salvador, and Honduras, has overwhelmed ports of entry and border patrol resources. These illegal aliens are arriving both in family units and as “unaccompanied alien minors,” or UACs.

For more than twenty-five years, a settlement agreed to by the Clinton Administration and the alien plaintiffs in a federal lawsuit, Flores v. Reno, has forced DHS to process detained alien children in specialized facilities separate from their detained parents. Because state licensing laws do not allow detention facilities for illegal alien families to operate, DHS has been releasing entire families into the interior, where they fail to appear for scheduled removal hearings at very high rates.

A second so-called humanitarian measure, the Trafficking Victims Protection Reauthorization Act of 2008, requires DHS to transfer alien (largely teenaged) minors found without their parents along the Mexican border to the custody of the Office of Refugee Resettlement (ORR), a division of HHS, within 72 hours. Because our immigration courts are terribly backlogged, ORR then places these aliens with “sponsors”—frequently relatives illegally in the U.S., and sometimes persons affiliated with gangs or smuggling cartels.

In short, this statute and the Flores settlement together have forced the Trump Administration, which had ended the catch and release of illegal aliens, to go back to the Obama-era policy of completing the human-smuggling—and sometimes the sex-trafficking—job of the cartels. Indeed, these minors and their families want to be caught, knowing they will be detained (and fed and housed) for only a short time before being given a bus ticket and sent off to their “final destination” (often Maryland, or New York City) in the United States.

Fortunately, however, both the settlement and the statute allow this system to be reformed by regulation. Among the most important reforms in the proposed regulations is one that will permit the federal government to establish family residential units that meet stringent court-ordered health and safety standards for children’s shelters, including third party oversight, even though no states have passed licensing laws for family unit facilities.

“Border Patrol officials have been very clear that if families can be detained together in humane conditions until their deportation hearings, instead of being released into the interior, almost all will stop coming,” said Dale L. Wilcox, executive director and general counsel of IRLI. “That will save the lives and money of countless aliens who otherwise would be tempted to put themselves or their children at the mercy of the cartels—who routinely rape would-be migrants, leave them for dead, or both. We applaud this hugely consequential step to shut down the crime and human suffering on the border, and also to put back in our nation’s hands vitally-needed control over who enters it, and under what conditions.”

The IRLI public comment can be read or downloaded here. The joint DHS/HHS Notice of Proposed Rulemaking is available here.

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]