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interviews

What State Takeover Looks Like

by Senator Scott Wiener
© Frank

interviews

Lies, Damned Lies, and Statistics

by Aaron Reichlin-Melnick
August 16, 2021

This interview with Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, was conducted and condensed by franknews

Aaron | I work on issues of humanitarian protection, immigration court issues, the intersection of law and policy, and, by and large, keep an eye on border numbers and get a sense of what's happening there — what policies are in effect and how they are playing out across the border.

frank | An important thing to do. I'm interested in understanding how you analyze these numbers because they can get confusing to a layman's eye. 

Yeah, I mean the Mark Twain quote, "There are three kinds of lies: lies, damned lies, and statistics," always comes to mind whenever we are talking about this. 

So yes, figuring out how to interpret the data, how to understand it, and how to pull out a narrative from it that's connected to reality is all important, difficult work.

To start, a lot of what is consuming headlines is that there is a surge of people showing up and being apprehended at the border. 

The headlines about the highest number of border encounters in 20 years as a result of a different group of people, single adults. So, despite this number being extremely high, actually, the total number is lower. Can you clarify what is happening, numerically, and what that means, more broadly?

Yes. Right now, there are really several different phenomena going on at the border all at the same time. A majority of the media attention has been focused on families, and unaccompanied children coming to the border. I would say that a lot of that focus is because, in many ways, these are the groups that seem the most sympathetic. Anything to do with children is of course deeply concerning. We want to make sure that children are being treated well, and families with children are being treated well. But, in fact, only one-third of those showing up at the border have been children and adults. 

Two-thirds of those encountered at the border since last year have been single adults who are crossing the border repeatedly. In almost all of these cases, they are arrested by border patrol and expelled back to Mexico under a policy known as Title 42. Importantly, this trend — high numbers of single adults coming to the border, crossing unsuccessfully, being sent back to Mexico, and repeating the process over and over again — began last year in May of 2020, right after the pandemic hit. 

Almost as soon as lockdowns lifted across Mexico and Central America, the number of single adults coming to the border began to spike. By September of last year, we were already seeing the highest number of single adults encountered at the border in 15 years. That number has only kept rising.

We are now seeing an unprecedented level of single adult migration that hasn't been seen in 20 years. 

When you look at immigrant families or unaccompanied children, the numbers are much lower. The number of unaccompanied children is indeed unprecedented — there's a record number of unaccompanied children who arrived to the border in recent months. However, unaccompanied children remain only about 10% of the overall number of people coming to the border. These are not huge numbers of children. It peaked in March with 18,000 children. 18,000 children in comparison to the 180,000 people who came that month, gives you some sense of perspective. 

Similarly, when we look at families, the number of families coming now has been consistently lower than the number of families that came in 2019. Up until last month, less than a third of the families had been let in to the United States than were let into the United States in 2019. Right now, those numbers are going up. July numbers of families are higher than they had been since the rest of the year, for reasons that are not entirely clear, but even then it is still a lower number of families that came in May 2019. So, it's not unprecedented. It is still a challenge in order to treat people in a humanitarian way, and there are still serious concerns about how people are being processed and treated, but for families, the numbers are not unprecedented. 

However, for single adults, that is where we are seeing numbers that we have not seen in 15  to 20 years. 

Why has that number of single adults crossing become so high?

In order to answer that, I need to go back and talk about Title 42. So, before the pandemic hit, if a single adult migrant who was crossing the border and seeking asylum was apprehended by the border patrol, they would be taken into custody and be given a so-called credible fear interview. They would be allowed to seek asylum if they pass that interview. If they did not pass the interview, they would be deported. Those who are not seeking asylum, people who are simply seeking a better life, would be apprehended, issued a rapid deportation order under something known as the expedited removal process, and then promptly deported back to their home countries. If they are from Mexico that could be done within 24 to 48 hours. If they were from Honduras and Guatemala or El Salvador, usually it would take several days. If they were from further countries, say from Haiti, they might be held in ICE for detention for weeks. 

If those who were deported got caught crossing the border again, they would be subject to felony, illegal re-entry charges, and could potentially serve prison time for reentering. 

However, just as COVID was sweeping across the nation, the Trump administration instituted something that has become known as Title 42, which is the public health code says that the head of the Center for Disease Control can “suspend the introduction” of individuals who are coming to the border from a place where there may be an infectious disease. 

Importantly, Title 42 does not say that once somebody is in the country, you can deport them to their home country, but that is what the Trump administration took from that law. Now, this is a law that's over a century old, all historical evidence suggests that this law referred to stopping ships and planes and other forms of transit from landing in the United States. For example, a steamship coming from a location where there was a typhus outbreak, could potentially be forced to sit offshore and wait until it had been quarantined. That is what the public health goal was intended to do. But, Stephen Miller and Mike Pence and Chad Wolf, the DHS secretary, went to the head of the CDC and told them to sign an order suspending the introduction of undocumented immigrants at the Southern Border. Thanks to reporting from ProPublica, we know that the CDC scientists resisted it. They believe the measure to be xenophobic and unnecessary, but, at the end of the day, the director of the CDC at the time, Robert Redfield, signed off on this order on March 20th

The Department of Homeland security is carrying out Title 42 through the border patrol. Under this policy, any migrant who's apprehended at the Southern border, rather than having an order of deportation issued against them, or being allowed to express a fear of return and have that credible fear interview, gets rapidly expelled.

Expelling is a euphemism — it did not exist as a term prior to March 2020; it was invented by the Department of Homeland Security in carrying out this new policy.

The expulsion is quite literally forcible deportation. A border patrol officer will take somebody, say a Mexican national, who entered the United States between ports of entry, march them to the nearest port of entry to Mexico, and then shove them across the border and say, “Walk that direction.” If they are from a place where Border Patrol can’t do that, such as Haiti, they would put them on a plane and deport them; except you don't get an order of deportation, you just get expelled, which is not actually a thing. It was just something they invented last year. 

The government of Mexico, a few days after Title 42 went in place, said that they would accept and allow the United States to send back not only Mexicans to Mexico, but also Hondurans, Guatemalans, and Salvadorians.  

So why did this lead to more single adults coming? Well, there are a couple of reasons. 

First, this pandemic itself set off push factors from Mexico and Central America. The economic devastation caused by the Coronavirus pandemic and lockdowns as well as a series of hurricanes that hit in the summer of 2020 and devastated large portions of Central America, set off a small refugee crisis.

The second point is this: whereas before, when you got caught crossing the borders and could potentially be subject to criminal prosecution if you tried again, now, due to Title 42, you were just sent back to Mexico, potentially within the hour, with no deportation order against you. 

Many people were taking that opportunity to try again.

As a result, people are crossing the border over and over and over again, failing multiple times in a row, and only stopping once they have run out of money or patience or something horrible happens. There are stories of people who have attempted and failed to cross the border 30 times.

That increases the number of apprehensions in border encounters, which creates a situation where you see a headline that says “one million apprehensions at the border.” People may incorrectly think that means that one million migrants have crossed the border, but that's actually not the case. In fact “one million apprehensions” actually refers to only about 600,000 people because the rate of recidivism is about 40%. And, again, this is 600,000 people who are mostly being caught and sent back to their home countries, or to Mexico.

Now, it is true that the number of families that are being allowed into the U.S. has gone up. That is not because the Biden administration has explicitly said that they want more families to come in. It is because Mexico has said that they will not take back non-Mexican families with children under the age of seven. President Biden himself has even said that if he could expel all of these families, he would, but the administration cannot. Additionally, a judge ruled that it is illegal to expel children under Title 42, and the Biden administration officially changed the policy to reflect that. 

I want to clarify something. When you say unprecedented, what do you mean? Unprecedented doesn’t necessarily mean crisis.

I think it's very important to note that the arrival of children and families seeking asylum is not itself a crisis. The U.S. has laws that allow people to come here in order to seek protection. Seeking asylum is legal. Since 2008 and the Trafficking Victims Protection Reauthorization Act, Congress has explicitly allowed unaccompanied children who are encountered in the United States to be given heightened protections, including a right to go in front of the immigration judge to see whether they should be deported or given protection in the United States. The arrival of undocumented immigrants who are seeking our help is not a crisis in and of itself. Fundamentally, this is something that is legal and allowed and built into the system. 

The extent to which this causes issues is because of resource constraints. The United States has not invested in the resource capacity to process the number of people that are coming in, in a safe, humane, and effective manner. Immigration court backlogs are at 1.3 million. The asylum office has a backlog of hundreds of thousands as well. And as a result, people’s cases can take years to resolve. And at the same time, there are humanitarian concerns when children arrive because we want to make sure that children are treated safely and humanely. The issue is that you need to hold children first for a brief period of time to make sure that they are released to a safe sponsor, who can care for them and is not going to exploit those children.

But, we have seen a record number of unaccompanied children this year, and the system was not prepared to handle those numbers.

The Biden administration struggled immensely in the first couple of months to make sure that there were enough physical beds for children to go to, to get them out of terrible conditions at the border. 

Again, the arrival of children and families is not the crisis. The United States has absorbed waves of refugees in the past, and we have done perfectly fine. In fact, those refugees have often enriched their communities and helped rebuild struggling towns. The concern comes down to what happens to them, how they're treated, and how well the government responds to it.

This is something the Biden administration is currently struggling with, it is something that the Obama administration struggled with, and it's something that the Trump administration actively tried to stop. 

The key difference between the administrations is that to the Trump administration, the crisis was the arrival of these people, not whether or not we had systems in place to properly handle them.

The Biden administration views the crisis as our response to these families and children and whether or not we have systems in place that can properly process them in a safe manner, especially during a time of COVID. It is a subtle distinction, but I think a really important one. 

The differentiation between the Biden administration from the Trump administration makes sense. Is there a clear difference between the Biden administration and the  Obama administration on immigration? 

The Biden administration has kept President Trump's Title 42 policy in place. Since Biden took office, tens of thousands of families and hundreds of thousands of others have been expelled back to Mexico or to their own countries. 

The Biden administration has been clear that they will resume deporting families who arrive at the border. That said, every time that they ratchet up the deterrent policies at the border, it comes with statements that effectively say, “We don't want to do this, but we think it's necessary, and we are working to rebuild the system.” Now, rebuilding the asylum system is going to take a while, so the Biden administration is effectively saying, just give us a year or two to fix this. Of course, people who are desperate can't wait a year or two. For those individuals, the Biden administration is letting them down just as much as the Obama administration did, and just as much as the Trump administration.

There are some clear differences. The Biden administration is working on major changes to the asylum system in the form of new regulations that could reshape this system, but at the same time the Biden administration has kept up a lot of the cruel policies of his predecessors, both Obama and Trump. So there is some development, but it is not the level of progress we would have hoped to see seven months after Biden took office. 

Has the administration clarified why they are maintaining Title 42?

The Biden administration has repeatedly said that they believe Title 42 is justified because of  public health concerns. I would note that not a single CDC scientist has ever appeared on the record and defended Title 42. They have issued press releases, regulations, and official government documents saying that title 42 is necessary, but they have not once come out and publicly defended it.

Now, of course there are concerns about COVID at the border. The issue is one of scale, however. Right now, in south Texas, nearly every migrant is getting a COVID test in the shelters.

The data released by the shelters shows that only about 8.3% of migrants are testing positive. 

Now 8.3% might seem like a lot, but that's just of the migrants being released, which works out to about 150 to 200 positive cases a day across the entire border. That's nothing. Texas alone had 12,000 positive cases over the weekend. Florida is seeing 33,000 cases a day. Are 200 migrants testing positive a deep threat to the United States’ COVID spread? Of course not. It is a drop in the bucket compared to the COVID spread that is made worse by anti maskers and vaccine deniers and local governments that have refused to take proactive steps to reduce spread.