Homeland Security says loopholes creating flood of unaccompanied alien children, family units at U.S.-Mexico border

The Department of Homeland Security is warning that existing “catch-and-release” loopholes are creating a “flood” of illegal alien children and family units at the U.S.-Mexico Border.

“Border security includes the ability to remove illegal aliens that the Department of Homeland Security (DHS) apprehends, otherwise we are stuck with a system that sanctions catch and release. Due to legal loopholes and court backlogs, even apprehended illegal aliens are released and become part of the temporary, illegal population of people that we cannot remove. This must end now,” the department said in a statement.

The loopholes serve as a “magnet” for illegal immigration as they are exploited by migrant children, family units and human smugglers.

The department noted further:

  • In 1997, the former Immigration and Naturalization Service entered into the Flores Settlement Agreement relating to the detention and release of unaccompanied alien children (UACs) . The Flores settlement agreement has now been litigated for over twenty years, spawning multiple onerous court decisions that handicap the government’s ability to detain and promptly remove UACs.
    • Under the Flores Agreement, DHS can only detain UACs for 20 days before releasing them to the Department of Health and Human Services which places the minors in foster or shelter situations until they locate a sponsor.
    • When these minors are released, they often fail to appear for court hearings or comply with removal orders.
    • These legal loopholes lead to “catch and release” policies that act as a “pull factor” for increased future illegal immigration.
    • This has incited smugglers to place children into the hands of adult strangers so they can pose as families and be released from immigration custody after crossing the border, creating another safety issue for these children.
  • The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 limits DHS’s ability to promptly return UACs who have been apprehended at the border and creates additional loopholes.
    • Under TVPRA, UACs who are not from Mexico and Canada are exempt from prompt return to their home country. We must amend the TVPRA so that all UACs who are not victims of human trafficking, regardless of country of origin, can be safely and promptly returned to their home countries.
    • We must amend TVPRA to limit the period to file asylum claims for UACs to one year consistent with all other applicants for asylum and ensure that these asylum cases are heard only in immigration court (no second bite at the apple).
    • We must end abuse of the Special Immigrant Juvenile (SIJ) visa to ensure the applicant proves reunification with both parents is not viable due to abuse, neglect, or abandonment and that the applicant is a victim of trafficking. This is necessary as many UACs are able to obtain a Green Card through SIJ status even though they were smuggled here to reunify with one parent present in the United States.

DHS also noted that the loopholes tend to convince foreign parents to pay for their children to be taken across the border illegally, leaving them in the hands of criminal smuggling organizations. Also, the department said that an influx of minors also provides the brutal gang MS-13 with additional recruitment opportunities. [source]

Analysis: The Trump administration remains committed to enforcing current immigration laws and ending loopholes that encourage additional illegal immigration, but the immigration bureaucracy is, like most other federal agencies, deep and wide. It takes time to identify issues and problems within the current system, and once they are identified it can take time to rectify them. In this case, a previous agreement is hampering the Trump administration’s ability to close a major loophole. 

The Flores Settlement Agreement (Flores) imposed several obligations on the immigration authorities, which fall into three broad categories:

  1. The government is required to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
  2. If a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.
  3. The government must implement standards relating to the care and treatment of children in immigration detention. [source]

Since this agreement is the result of a court settlement, it likely cannot be undone or changed by presidential executive order. Now that DHS is sounding the alarm, we expect the Trump administration to more aggressively pursue changes to the agreement JudiciaryJudicary. It certainly is in the national interests of the country. 


Jon E. Dougherty is a political, foreign policy and national security analyst and reporter with nearly 30 years of experience in both fields. A U.S. Army veteran of Operation Enduring Freedom, he holds BA in Political Science from Ashford University and an MA in National Security Studies/Intelligence Analysis from American Military University.

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