It would be an understatement to say that the number of unaccompanied alien children (UACs) who have entered illegally has surged since Joe Biden became president. Nearly 300,000 UACs have been apprehended by Border Patrol at the Southwest border since February 2021, Biden’s first full month in office. Then-Vice President Biden circa 2014 would have some harsh words for the current version — and some cold hard truths about why President Biden should change his border policies.
Unaccompanied Alien Children. The term “unaccompanied alien child” is defined at 6 U.S.C. § 279(g)(2) as:
a child who — (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom — (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.
That definition was added to federal law by section 462 of the Homeland Security Act of 2002 (HSA), and if you are trying to understand why nearly 300,000 UACs has been apprehended at the Southwest border in the last 22 months, it’s the place to start.
Homeland Security Act of 2002. Not surprisingly, the Homeland Security Act was the law that created the Department of Homeland Security (DHS), and prior to the establishment of that department, the former Immigration and Naturalization Service (INS) had jurisdiction over the detention, care, and release of alien children.
It’s the “former INS”, because the agency was abolished in section 471 of the HSA, when its immigration responsibilities were dispersed among various other agencies at DHS.
One set of responsibilities that was not kept within DHS, however, was the detention, care, and release of UACs. A Democratic amendment to the HSA transferred authority over those children to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services.
Why ORR? I have no idea, and I was in the room the day that amendment was agreed to. There was no discussion at all as to why that office — which up to that point had no authority to detain anyone — was a better choice than say, ICE, which has jurisdiction over the detention of aliens generally for immigration purposes.
That said, many aliens and advocates had criticized the way in which INS detained, cared for, and released alien children, so the sponsors of that amendment likely figured placing those kids with anyone else was a better choice. That hasn’t been borne out by experience, however.
At least initially, though, there weren’t that many UACs to be concerned about. According to the Congressional Research Service (CRS), the number of UACs who were apprehended by DHS and referred to ORR in the early 2000s “averaged 6,700 annually and ranged from a low of about 4,800 in FY 2003 to a peak of about 8,200 in FY 2007”.
Trafficking Victims Protection Reauthorization Act of 2008. That all changed when Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).
Section 235 of the TVPRA divides UACs into two separate groups: (1) those children from “contiguous” countries (Canada and Mexico); and (2) minor nationals of "non-contiguous" countries (everywhere else).
Under that provision, a UAC from a contiguous country can be returned back if the child has not been trafficked and does not have a credible fear of return.
UACs from non-contiguous countries, however, are to be transferred to the care and custody of ORR within 72 hours and placed into formal removal proceedings, even if they have not been "trafficked" and have no fear of return. ORR is then directed to place those children with “sponsors” in the United States.
Not surprisingly, after Congress passed that provision, the number of UACs from non-contiguous countries soared, as parents (and more importantly smugglers) realized that section 235 of the TVPRA all but guaranteed that any such child who could make it illegally into the United States would be released into this country.
According to CRS, in FY 2008, the fiscal year before the TVPRA was passed, CBP encountered fewer than 10,000 UACs at the Southwest border.
In FY 2009, the year that bill was signed, that number grew to around 20,000 UACs, 82 percent of them Mexican nationals, and just 17 percent from the non-contiguous “Northern Triangle” countries of El Salvador, Guatemala, and Honduras.
Illegal UAC entries kept growing thereafter, with Border Patrol apprehending more than 68,500 UACs in FY 2014. By then, however, just 23 percent of UACs came from Mexico and 77 percent from the Northern Triangle.
Plainly, section 235 of the TVPRA created a loophole that is being exploited by those (smugglers, parents, other relatives, traffickers, the children themselves, etc.) seeking to bring UACs to the United States illegally.
You don’t have to trust me, however, because as a 2014 Washington Post editorial explained: “Inadvertently, [TVPRA] has encouraged thousands of Central American children to try to reach the United States by granting them access to immigration courts that Mexican kids don’t enjoy.”
Few aliens “enjoy” immigration court, and even fewer eight-year-olds are “trying to reach the United States” (someone else is paying the smugglers), but you get the point.
President Obama’s UAC Response. President Obama knew that he had a UAC problem on his hands, and in June 2014 he wrote to congressional leadership asking them to provide DHS “additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador”.
In other words, he wanted to plug the non-contiguous UAC loophole in the TVPRA. Congress didn’t act, however, and still hasn’t acted on that request.
Vice President Biden Goes to Guatemala City. Which brings me to then-Vice President Joe Biden, whom Obama tapped to handle illegal migration in much the same way that Biden has delegated responsibility for the border to his own vice president.
It was in that role that — on June 20, 2014, 10 days before Obama sent his letter to congressional leaders — Biden was in Guatemala City, meeting with government leaders from the Northern Triangle.
In a press conference directly after those meetings, the then-vice president explained:
The United States, to state the obvious, is greatly concerned by the startling number of unaccompanied minors that — children and teenagers who are making a very perilous journey through Central America to reach the United States. These are some of the most vulnerable migrants that ever attempt — and many from around the world attempt — to come to the United States. They’re among the most vulnerable. And the majority of these individuals rely — we estimate between 75 and 80 percent — rely on very dangerous, not-nice, human-smuggling networks that transport them through Central America and Mexico to the United States.
These smugglers — and everyone should know it, and not turn a blind eye to it — these smugglers routinely engage in physical and sexual abuse, and extortion of these innocent, young women and men by and large.
And they profit from the misery of these children and teenagers; these desperate, desperate young people.
There’s a lot to unpack there, but let’s begin with the line “to state the obvious”. The Obama-Biden administration was plainly concerned about UACs — that’s why Biden was in Guatemala City in June 2014, trying to find solutions to the UAC crisis with regional leaders.
Then, there’s the part about “the startling number of unaccompanied minors ... who are making a very perilous journey through Central America to reach the United States”.
Again, in FY 2014 when Biden spoke those words, UAC apprehensions at the Southwest border totaled 68,541. More than twice as many UACs have been apprehended at the Southwest border in each of the fiscal years President Biden has been in office, and the number of UAC apprehensions during his tenure is more than four times that FY 2014 total.
In fact, before Biden became president, monthly UAC apprehensions exceeded 11,000 just once, during the “border emergency” in May 2019, when they reached 11,475. Border Patrol broke that record in Biden’s first full month in office, and apprehensions have dropped below 11,000 just once during his term (in January 2022, when agents caught just over 8,600 UACs).
Those figures are truly “startling”, but when was the last time that you heard the media, let alone the White House, even mention the unacceptably large number of unaccompanied children showing up at the U.S.-Mexico line?
They should because those UACs are still “some of the most vulnerable migrants”, they are still “making a very perilous journey through Central America to reach the United States”, and they are still “relying on very dangerous, not-nice, human-smuggling networks”. Nothing’s changed, except the Number Two guy at the While House is now Number One.
“These Smugglers Routinely Engage in Physical and Sexual Abuse, and Extortion.” Which brings me to the most harrowing and visceral excerpt from Biden’s June 2014 statement: “These smugglers — and everyone should know it, and not turn a blind eye to it — these smugglers routinely engage in physical and sexual abuse, and extortion of these innocent, young women and men by and large.”
The physical and sexual abuse of migrants — including migrant children— has been and remains the most shocking part of their “very perilous journey” to the United States, and the best reason why the federal government must do everything it can to deter foreign nationals from beginning that trek.
Vice President Biden circa 2014 should tell that to the current occupant of the Oval Office, because President Biden is the first chief executive in history to reject deterrence as a border strategy. That’s why illegal entries overall, and by UACs in particular, are running at record rates under this administration.
Aside from Fox News, however, when have you heard any major media outlet report that migrants — males and females, young and old — are “routinely” physically and sexually assaulted during the “very perilous journey” to the United States? You don’t have to trust me — just listen to what Joe Biden said in Guatemala City on June 20, 2014.
Listen to VP Biden in 2014: “Everyone should know”, and nobody should “turn a blind eye to” the physical and sexual abuse of the unaccompanied children smuggled to the United States. So why is the Biden White House ignoring those horrors, aided and abetted by a willfully blind U.S. media?
The man representing his president and nation at that 2014 press conference in Guatemala City would want answers, but now that man apparently no longer cares.