By Robert Romano

Under current immigration and asylum regulations, it was impossible to enforce the law on the southern border. The hundreds of thousands of Central Americans flooding the border the past several months gamed the system, betting that a compassionate America would let them in.

Afterward, the families were released into the U.S. pending hearings, but those that showed up did so only to the extent they might be granted asylum, and upon rejection were never heard from again. It’s mandatory catch-and-release. Because of the way the regulations were written.

As a result, the number of family units showing up on the border has been skyrocketing. In all of FY 2018, 161,113 family units were apprehended, and 58,660 unaccompanied children. Now family units are up to 427,881 in FY 2019, an increase of 165 percent and unaccompanied children is up 14 percent to 67,116, with three more months remaining in the fiscal year.

Now, to get a handle on the problem and to deter future migrant waves, the Department of Homeland Security and the Department of Justice are using their powers under the law to provide for additional restrictions and have issued a new rule telling asylum seekers they must first apply for asylum in the country they first transit through and be denied before they may qualify.

The new regulation states, “an alien who enters or attempts to enter the United States across the southern border after failing to apply for protection in a third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States is ineligible for asylum.”





The move comes after the U.S.-Mexico Joint Declaration that was finalized after President Donald Trump threatened up to a 25 percent tariff on Mexican goods. Under the agreement the U.S. is expanding the Migrant Protection Protocols: “those crossing the U.S. Southern Border to seek asylum will be rapidly returned to Mexico where they may await the adjudication of their asylum claims… [And,] Mexico will authorize the entrance of all of those individuals for humanitarian reasons, in compliance with its international obligations, while they await the adjudication of their asylum claims.”

The new approach will hopefully begin to get the situation under control.

After briefly attempting to enforce the laws as written starting in April 2018, 2,648 children were separated from the families, according to a Congressional report, but by June 2018, President Donald Trump halted the effort, opting to keep families together pending hearings for illegal entry or asylum via Executive Order 13841.

The problem? Under a 2008 federal law against human trafficking and federal court rulings, unaccompanied children from Central America are given to the care of the Department of Health and Human Services, and eventually released, ideally to a relative residing in the U.S., within 20 days under federal court precedent.

As for the adults, there is no provision of law allowing them to stay, even if they arrived with children. If the adults apply for asylum or if the federal government elected to prosecute them, that complicates matters. Asylum cases typically take longer than 20 days to process. This is where in the process the family separations were attempted before that was abandoned. Now, under the executive order, the families are placed into housing pending the hearings.

In the past, this meant, according to a 2018 White House fact sheet, the government would “release the entire family unit into the U.S. interior. Once released into the U.S. interior, these family units frequently disappear into the country, failing to appear for their court hearings or comply with removal orders.”

That still appears to be happening today. Matthew Albence, then executive associate director for ICE (now acting director), told the Senate Homeland Security and Governmental Affairs Committee in Sept. 2018 that 3 out of 10 illegal immigrant family units would cut off their ankle tracking bracelets shortly after being released from custody. But if the asylum is denied, per Albence, the families disappear. “They will comply up until the benefit of complying is not there,” said Albence.

In other words, it was a free for all. One can argue that the child separations policy was ill-conceived, but surely then so is the current system. Without detention until either asylum is granted or deportation commences, illegal immigrant family units are a significant flight risk. The moment they think the process won’t favor them, they disappear.

That is why, to prevent hundreds of thousands more from flooding the border, making a very dangerous journey, the new rules by DHS and DOJ are absolutely necessary. The prior rules presented a perverse incentive. President Trump was right. Unless and until the asylum laws are permanently fixed, this problem was not going to be fixed. In hindsight, granting automatic entry to children from Central America in 2008 was a very poor policy decision. It is absolutely being abused now.

But so far Congress has refused to do a thing about it, and so the Trump administration is doing everything within its powers under the law to act and bring a close to this crisis via regulation. Something’s got to give. If it seems like President Trump and his administration are the only ones trying to actually solve this problem, while members of Congress exploit the crisis for political gain, you’d be right.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.