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Biden and the Border Crisis

This article on Biden and the Border Crisis was written by Joy Athanasiou, a Denver-based attorney and political consultant specializing in lobbying and advocacy. She also is my first cousin, once removed!

Biden the Border Crisis
Recently constructed panels at the new border wall system project east of Douglas, Arizona on December 14, 2020. The border wall system includes a combination of infrastructure including new all-weather access roads. (U.S. Customs and Border Protection photo by Jerry Glaser)

Biden and the Border Crisis

The “Border Crisis” once again fills media and the internet with non-stop images of families & children. As an immigration attorney and policy expert, people often ask me what’s really happening. Here are some basic facts to help understand the situation:

First, nearly all media portrayals are filled with inaccurate, misleading and skewed information.

Yes, people are crossing our southern border as they have for decades, even centuries. Today, border-crossers come from many parts of the world including Cuba, Venezuela, Cameroon and India. A slight majority come from Central America, including most children traveling without parent(s) or guardian; we call them unaccompanied minors.

Second, we need to understand why people are coming.

Border crossers used to be mostly seasonal workers from Mexico, but now many more are fleeing persecution in their home country, and may also be escaping extreme poverty and/or unprecedented natural disasters.

For nearly all prospective immigrants, there is no way to come to the US legally except asylum, which may only be requested from inside the US or along our border. Individuals cannot apply from their home countries. Tens of thousands of children and families have languished just on the other side of the border after the Trump administration unlawfully denied asylum and child protections through various measures. In November, 2020, US courts overturned one such measure, which partially accounts for the current surge.

Most unaccompanied children have close family members living in the US. For over half, that includes at least one parent. But parents can’t sponsor their children under current law even if they’ve lived here legally for years. The Biden administration just announced it would restore “CAM,” the sole in-country program that allowed certain reunifications. Terminated in 2017, it will take several months to restore.

Media attention has focused on smuggling and trafficking of children into the US while ignoring the root causes. Trafficking is a serious worldwide problem but accounts for less than 1% of the children at our border. Smuggling is simply the means to travel here and has nothing to do with why children flee their homes. Central American children have told me heartbreaking stories of home: they were threatened with assault, rape and murder if they didn’t join a gang. Some were attacked & beaten. Girls as young as 10 were raped. They also had little to no food. One boy from Honduras told me about eating soap. Parts of Guatemala have experienced over 90% drought-related crop loss, causing mass famine.  

Third, the number of people at our southern border isn’t unprecedented.

In fact it was higher in the past. Over 1 million individuals were apprehended each year throughout the 1980’s, 1990’s, 2000’s until approximately 2007, followed by a decade-long drop before trending upward again over the past few years. In fiscal year 2021, which started October 1, 2020, we’ve seen just under 570,000 apprehensions.

It’s important to put apprehension figures in context: they include repeat crossings by the same person, which CBP estimates at about 40% and they don’t reflect the total number of people who try to enter. The number of people who succeeded in unlawfully entering (which we call got-away’s) decreased an astonishing 92% from over 2.1 million in 2000 to 173,000 in 2018. In other words, far fewer people are trying to cross our Southern border now, mainly because it’s much harder to cross undetected. Our immigration enforcement spending has skyrocketed, increasing more than tenfold since 1993. By the mid 2010’s, US spending on immigration enforcement exceeded all other federal law enforcement combined! Think about that. More than all of the money spent on terrorism, drug trafficking, national security and major criminals put together.

Biden the Border Crisis - border wall
Recently constructed panels at the new border wall system project near McAllen, Texas on October 30, 2020. (U.S. Customs and Border Protection photo by Jerry Glaser)

Fourth, a legitimately a new phenomenon since 2014: more children come alone.

Another new aspect is that border crossers aren’t trying to sneak in; children and families actively seek out U.S. authorities to ask for protection, or unaccompanied children plead to be reunited with family.

We have strict laws regarding treatment of children. Children who can’t be immediately expelled must be put into immigration court proceedings to determine if they qualify to stay here. By law, children should be placed with family members or in foster care through the Office of Refugee Resettlement within the Department of Health & Human Services (ORR/HHS).

In 2014, the US was taken by surprise and didn’t have adequate facilities for housing unaccompanied children. After a rocky start, the government began building up capacity. Then the Trump administration made drastic changes by further increasing immigration enforcement spending but diverting funds away from improving facilities. More changes included: cuts to HHS funding & capacity building, lowering care standards and changing the rules to allow increased expulsion, longer child detention, and greater family placement restrictions, most of which were subsequently found to violate the law. In fact in 2019, Congress specifically allotted $112 million to CBP to spend on migrant care and facilities. Instead, the agency spent much of that money buying ATVs, boats and dirt bikes and other equipment. 

Consequently, thousands of children languished in substandard detention centers for weeks or months, at exorbitant cost to taxpayers. Thousands more were unlawfully expelled to Mexico; a big portion of the current surge are those children. They have been living in makeshift shelters on the other side of our border. There, they are literally starving but for help from non-profits. They also face extreme risk of kidnapping, rape & murder by Mexican drug cartels. 

Biden the Border Crisis - border wall arizona
Recently constructed panels at the new border wall system project east of Douglas, Arizona on December 14, 2020. The border wall system includes a combination of infrastructure including new all-weather access roads. (U.S. Customs and Border Protection photo by Jerry Glaser)

Biden’s Inheritance

The factors above help explain the scenario that the Biden administration inherited.  However, current claims of “open borders” are unfounded. CBP continues to rapidly expel over 70% of people encountered at the border. Those not expelled fall under either asylum or child protection laws. 

Current images of overcrowded border facilities are real and troubling. By law, CBP isn’t supposed to be in the detention business, their job is to apprehend & then expel, release or transfer individuals to other agencies within 72 hours. CBP has routinely violated the 72 hour rule for years. Most concerning is that children haven’t been transferred or released promptly. Right now, ORR/HHS is near capacity in state-licensed shelter space, which was reduced by COVID-19 restrictions. Also, prior administration rules delay/obstruct family member placement, and un-doing those rules takes time. The Biden administration just enlisted Federal Emergency Management Agency (FEMA) to provide emergency shelters to offer children better facilities until they can be released to relatives while CBP re-builds capacity.

After World War II, world leaders worked together to create special protections for people forced to migrate, including asylum laws, so there could never be another Holocaust. The Biden administration pledged to uphold US and international law, which requires that we humanely treat asylees and not allow children to die steps from our border. Judging whether Biden can enforce our laws in an effective yet humane manner would be premature after only 4 months but new policies are encouraging. Lastly, we will never “fix” this problem through enforcement only. Families and children will continue to come seeking protection unless conditions improve at home so people don’t have to flee in the first place.

How you can help

Joy has provided a list of organizations that provide comprehensive information, as well as direct aid to refugees and immigrants on our Southern border.

More about the Author

In 2016, Joy formed Joy Strategies, LLC, building on her nearly 2 decades of federal, state and local advocacy, and utilizing her background as an experienced immigration attorney. Previously, Joy owned Athanasiou Law Firm, specializing in immigration law and policy. Joy is recognized as one of the key experts on immigration in Colorado, and well known for her ability to explain complex issues, resolve intractable problems and persuade even the most hostile audiences.

Joy routinely collaborates with national & local community groups, schools and governments on immigration, refugee and constitutional due process issues. Joy has a Juris Doctor from the University of Denver Sturm College of Law and a Masters Degree from the University of Denver Korbel School of International Studies.

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