Originally Published in Vox.
Hundreds, or even thousands, of migrant families are set to be released from government detention along the US-Mexico border over the next several days. But while the mass release of families may cheer critics of the Trump administration’s treatment of immigrant families, the government’s new plan will probably lead to hundreds of families getting dropped off en masse at bus stations — literally out in the cold.
Immigration and Customs Enforcement (ICE), the agency that’s generally responsible for immigrant detention, has already started mass releases of hundreds of families a day.
But in a break with standard policy, US Border Patrol has developed a plan to release some families directly if they’ve been held for more than a few days — instead of holding all families for ICE to pick up.
Plans for Border Patrol to release families directly were confirmed to Vox by two officials with knowledge of the mass-release operation. The sources said that releases from both ICE and Border Patrol could start as soon as Thursday and are expected to last for a few days — with hundreds of families a day set to be released in the Rio Grande Valley and around El Paso.
A spokesperson for the Department of Homeland Security, Katie Waldman, did not confirm any plan to release families directly from Border Patrol custody.
However, in a statement, Waldman partly blamed a 2015 ruling extending legal protections to children who arrived with parents in the US — including requiring Border Patrol to keep them in custody for no more than 72 hours — for causing the current “immigration crisis”, saying it “incentivizes illegal alien adults to put their children in the hands of smugglers and traffickers” and “rewards parents for bringing their children with them to the United States.”
Releasing families who’ve entered the US without papers from detention is the exact outcome the Trump administration has spent all of 2018 deriding as “catch and release,” and which it has rolled out a series of policy initiatives — “zero tolerance” prosecution and widespread family separation, regulatory efforts to keep families in detention until they’re deported, the “asylum ban” now blocked in the courts, a not-yet-implemented plan to force asylum seekers to wait in Mexico — to prevent.
But the system for apprehending and detaining children and families is in crisis — and the consequences have been deadly.
Two children have died in the past month in Border Patrol custody in New Mexico, the area of the border where the US government has been most overwhelmed by unprecedented numbers of families crossing into the country. Felipe Alonzo-Gomez, who died in a New Mexico hospital just after midnight on Christmas Day, had been in Border Patrol custody for six days— a violation of both agency policy and the Flores settlement that governs the treatment of children in immigration custody — and had been shuffled among four different facilities.
Amid growing scrutiny of Border Patrol detention conditions, the new release plan may seem welcome to Trump critics. But that raises the question of where all those newly released families will go; who will help them adjust to life in the United States; and how they will get to where they need to go while awaiting their immigration court hearings.
Normally, local nonprofits take care of families after release at the border. But it’s not at all clear that local nonprofits have the capacity to care for hundreds more families — the lead nonprofit in El Paso, Annunciation House, was stretched beyond capacity even before ICE started releasing hundreds of families in the area earlier this week. And in some sectors, the government doesn’t even have a relationship with a local nonprofit that it can notify before dropping off families.
That means families who have no knowledge of the US might be getting dumped en masse at bus stations in the middle of winter, many without winter clothing and all without guidance about what to do next.
Officials and nonprofits alike at the border are being asked to do something they have never had to do before: take care of tens of thousands of migrant families coming in a month, often in large groups and often in remote areas. President Trump’s constant stoking of panic about immigrants coming into the US to commit crimes has overshadowed a real crisis at the border over the past several months — a crisis of resources. Unprecedented numbers of families are coming into the US without papers, and no one has the capacity to deal with them humanely.
If ICE doesn’t start making more room for families, Border Patrol will start releasing them on its own
US Border Patrol is responsible for apprehending people who cross into the US without papers between ports of entry (which is a misdemeanor under federal law). But Immigration and Customs Enforcement is responsible for detaining immigrants — so migrants apprehended by Border Patrol are supposed to be handed off to ICE as quickly as possible.
Under Border Patrol policy, every apprehended migrant is supposed to be transferred to ICE within 72 hours. That standard is especially important for children and families, because the Flores settlement, the legal agreement governing the treatment of children in immigration custody, requires children to spend no more than 72 hours in Border Patrol custody (except in extraordinary circumstances).
Since 2015, that standard has applied to children who arrive with their parents as well as children who arrive alone. That’s the ruling that DHS spokesperson Waldman blames for encouraging families to come to the US without papers: “As long as activist judges continue to set national immigration policy,” she told Vox in a statement, “they continue to put family units and innocent children in harm’s way.”
Previously, when that didn’t happen — when ICE didn’t pick up a family from Border Patrol within 72 hours of their apprehension — Border Patrol just kept holding them anyway until ICE could pick them up. But for the next few days, ICE is under pressure to create as much room as possible to pick up more immigrant families from Border Patrol. And if they can’t create enough to take everyone, Border Patrol is taking matters into its own hands.
Under the new plan, as described to Vox, ICE has targets for the number of families it’s supposed to release from detention in specific areas along the border — with the most releases happening in the Rio Grande Valley and the El Paso sector (which covers New Mexico as well as the western end of the Texas-Mexico border).
Meanwhile, Border Patrol field operatives have been given guidance on a new process that would allow them to directly release families under certain circumstances.
As described to Vox, the guidance instructs Border Patrol employees in a given sector to notify ICE that they’ve been holding a certain number of families for more than 72 hours and that it’s going to get them out of its custody. Unless ICE has created enough room to pick up those families, the guidance instructs Border Patrol to call a local nonprofit and ask if they have capacity to take newly released families. If not, the families would be issued notices to appear in immigration court at a later date, and dropped off at transit centers like Greyhound bus stations.
It’s not clear when the new Border Patrol process would go into effect, or whether it has been put on hold.
The scale of releases is expected to vary from sector to sector. In the Rio Grande Valley, more than 500 members of “family units” are expected to get released per day; in the El Paso sector, ICE is expected to release hundreds a day, and Border Patrol anticipated releasing up to 150 a day as well. Wide-scale releases from ICE and Border Patrol were also anticipated in the Yuma sector (covering western Arizona and the eastern edge of California), and ICE releases are set to happen in the San Diego sector (western California) as well.
Wide-scale releases are set to last only a few days, in the hopes that ICE will be able to start taking people in a timely fashion after that.
There is a crisis of capacity at the border
Donald Trump has been crying wolf about the dangers of the US-Mexico border since 2015. But over the summer and fall of 2018, it’s become clear that there really is a crisis at the border — because more families are coming, to more places, than US officials have ever been capable of dealing with.
While way fewer people overall are crossing the border than did during the turn of the 21st century, that’s not necessarily true of families crossing the border. During the peak of unauthorized migration into the US circa 2000, the overwhelming majority of migrants were single men; only 10 percent of Border Patrol apprehensions were families or unaccompanied children. in November 2018, 57 percent were families or children.
More families crossed the US-Mexico border without papers in November 2018 than in any month since the Department of Homeland Security started tracking family apprehensions separately (October 2011). More children and families crossed in November 2018 than crossed during the peak of the “border crisis” in June 2014.
They’ve been coming in large groups of more than 100, and sometimes as many as 300. And they’ve been coming in areas of the border where families traditionally haven’t come — like rural New Mexico.
The immigration system isn’t designed to deal with families crossing into the US — which is the root of Trump’s complaint about “catch and release.” That goes double for Customs and Border Protection, which oversees Border Patrol as well as ports of entry. CBP Commissioner Kevin McAleenan told the Senate Judiciary Committee earlier this month that “the infrastructure is not compatible with the reality” of who is getting apprehended — essentially admitting that his agency was ill-equipped to take care of the people currently entering the US.
Border Patrol doesn’t even have the standards for detention conditions that ICE has — because Border Patrol isn’t supposed to be detaining anyone for any meaningful amount of time. The problem, of course, is that the times families are being held by Border Patrol for days on end are the times when the rest of the system is already overloaded and in crisis.
Before December 2018, it had been a decade since any child had died in the custody of Border Patrol (or its partner division, the Customs and Border Protection Office of Field Operations, which deals with ports of entry). In December 2018, two children have.
The death of Jakelin Caal Maquin, who died on December 8, has raised questions about Border Patrol’s responsiveness to medical needs and its capacity to deal with medical emergencies in remote areas of the border. The death of Felipe Alonzo-Gomez on Christmas Day has raised separate questions: about why a child was held in Border Patrol custody for six days before ICE was even asked to find a spot for him and his father, and about why he was shuffled between four facilities — including being taken from the hospital to a cramped highway checkpoint.
But by the time the crisis backs all the way up to Border Patrol — the first agency to deal with immigrants — it’s a sign that the rest of the system is in even bigger trouble. That’s what happened in 2014, when an influx of unaccompanied children stretched the system to a breaking point, and it’s what’s happening now.
Turning hundreds of families out into the cold presents its own type of crisis
Critics of the Trump administration have long pointed out that the law doesn’t require the government to detain everyone it apprehends. There are alternatives to detention, including case management and ankle bracelets, that are cheaper and allow the government to monitor people before their hearing in front of an immigration judge.
When it comes to immigrants who are apprehended by ICE after already living in the US, that is obviously a more favorable solution to the immigrant. But turning out a family from rural Guatemala into the United States — often with a check-in date with an ICE official in a different state — poses its own kind of problems.
ICE has already been criticized by nonprofits and progressives in El Paso for dropping off about 200 family members at a Greyhound station on Christmas Eve. (Station employees reportedly allowed the families to stay in idling buses to keep warm.) Previous mass releases — including in the days before the 2018 election — have come under similar scrutiny.
The fundamental problem is that ICE and CBP are immigration enforcement agencies. They’re not equipped to provide kinder, gentler alternatives that take care of the immigrant families they’ve apprehended for breaking the law.
The Trump administration wouldn’t want to do this anyway — administration officials claim that any effort to make it easier for a family to live in the US while waiting for their immigration hearing will encourage more people to come without papers and make fraudulent asylum claims.
But even the existing systems that have been designed to provide “humane” alternatives for people who enter the US without papers — like the system for unaccompanied children run by the Department of Health and Human Services — have come under increasing scrutiny in the past year. Nonprofit contractors that shelter unaccompanied children have been accused of neglect and mistreatment. In a sign of how little trust Trump critics have in the government’s ability to humanely care for immigrant children, some progressives have simply started labeling all unaccompanied children in HHS custody — including those in temporary foster placements — as victims of “baby jails.”
So the job of providing basic care to just-released families and helping them get where they need to go falls to nonprofits like Annunciation House in El Paso and Catholic Charities and RAICES in the Rio Grande Valley. But those nonprofits aren’t necessarily equipped to deal with unprecedented numbers of families, either. And they can’t just build up that capacity on a whim.
The conversation about what ought to happen to families once they’re apprehended by border agents is going to have to be a long-term one. That doesn’t much help the families who are about to be released by the hundreds at bus stations in an unfamiliar country with no one helping them get where they need to go.