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2018's shifting immigration policy leaves masses at border, kids detained

As 2018 draws to a close, the United States is holding 15,000 unaccompanied migrant children in detention, with a fifth of those in the Tornillo "tent city" in the the West Texas desert.

In Tijuana, just across the border from San Diego, Calif., more than 5,000 Central American migrants are on waiting lists to seek asylum, blocked from international bridges by U.S. border sentries after marching thousands of miles together across Mexico.

The asylum denial rate has surged to its highest levels ever. Yet deportations, often seen as a bellwether of immigration enforcement, are still not at the peak reached during the Obama administration -- even in the wake of President Donald Trump's zero-tolerance policy on illegal entry.

Chaos has overwhelmed U.S. immigration policy in 2018, ending the year with a government shutdown over funding for a border wall. How did it become so confusing?

"In 2017, there was this collective quiet, cautious sigh of relief among immigration advocates because we came to realize that immigration judges and federal judges were blocking a huge portion of Trump's most extreme executive actions," said Everard Meade, director of the Trans-Border Institute at the University of San Diego.

Last year, fewer than 3,000 unaccompanied children were in migrant detention in the United States. Mexican border cities did not house thousands of migrants. U.S. Border Patrol apprehensions were at at their lowest in 30 years. And U.S. courts had put Trump's initiatives, like an immigrant travel ban, on hold.

"We thought the institutions were more resilient than we thought they were," Meade said, "And then 2018 hit and all bets were off.

"What we started to see up and down the immigration system was the erosion of the very things we thought were resilient in 2017. Immigration judges facing more pressure to hold asylum seekers, particularly from Mexico and Central America, to a really high standard. The pressure to detain immigrants for a longer period of time."

More children detained

There are about 100 shelters or foster homes for unaccompanied migrant children in 17 American states.

In 2018, the number of days a migrant child spends in these facilities -- before being sent to an adult relative or friend who acts as a sponsor while their immigration case proceeds -- has reached almost 60 days, three times longer than the legally accepted limit.

Longer stays have put pressure on the shelter network, forcing the government to open an "influx shelter" for unaccompanied migrant children in June at the Marcelino Serna land port of entry in Tornillo, Texas.

"Influx shelters" are meant to be temporary. The Obama administration turned to them in the summer of 2014 when a surge of thousands of unaccompanied children from Central America arrived at the border.

The number of unaccompanied minors crossing the border has risen for the past five years. But in 2018, policy decisions about releasing children to sponsors lengthened their time in detention.

In May, the Department of Homeland Security (which includes Immigration and Customs Enforcement) entered into a memorandum of understanding with the Department of Health and Human Services (which has the legal custody of unaccompanied child migrants) to share fingerprints of all adults living in the same household as the sponsor. Sponsoring adults stopped coming forward because many are undocumented. Indeed, ICE arrested 170 adults who were trying to sponsor children, or who lived in the same household, for their illegal immigration status.

Soon after, the Tornillo facility opened, initially with space to house 400 migrant youth in tents. But a few months later, its population had ballooned to 2,700 with a maximum capacity of 3,000, and a budget of more than $360 million.

HHS said earlier this month it could no longer sustain such a large number of children in Tornillo or elsewhere. It decided to retract the decision to fingerprint all adults in the sponsor's household, but will still share fingerprints with ICE.

"The change is a big deal," said Sarah Pierce, policy analyst at the Migration Policy Institute, an independent, non-partisan think tank based in Washington, D.C. "It shows the Trump administration is sincerely interested in reuniting these children. They have come to the realization that they can't just house increasing numbers of unaccompanied child migrants. But I don't know if the change is enough to walk back the extreme chilling effects of the enforcement acts so far.

"The only way they are going to solve the mass detention of children is by making sponsors feel comfortable about coming forward and claiming children," she said.

Asylum crisis

For Pierce, the skyrocketing detention of migrant children signals a crisis of asylum, not a border crisis: "We are having a crisis in that we are having a record number of families and children arriving on the southern border."

In late November, a caravan of 5,000 Central Americans arrived in Tijuana, just across the border from San Diego. In the runup to the midterm elections, Trump demonized the migrants, calling them "criminals" and refusing to admit them to the United States as asylum seekers.

Jessica Vaughan of the Center for Immigration Studies, a Washington-based think tank that advocates for lower legal immigration and an end to illegal immigration, said the caravan is part of a bigger border crisis caused by a failure of the Obama administration to limit asylum.

"The Central Americans are responding to the incentive of being able to get away with asking for asylum saying that they have a fear of return and using that to get into the United States. It is a problem," Vaughan said.

"There are so many people coming who are never going to qualify for asylum but who are using their expression of their fear of return as an excuse to get into the country. They have no intention of applying for asylum, or even any delusions they will get it. It's just a way to get into the country," she said.

Narrowing asylum

Part of the solution has to be found in the U.S. relationship with Mexico, Vaughan said. The Trump administration has announced that asylum seekers would be forced to remain in Mexico while their cases are adjudicated.

But some experts say that's only a stopgap solution.

"The problem with the Trump administration's focus on the southern border is that they aren't trying to solve the asylum crisis," Pierce said. "They are just trying to limit asylum, physically limit asylum, and legally limit asylum and that isn't working. It's getting caught up in the court system. Until the administration takes the unsexy, work-intensive steps to fix the asylum system, the border is probably going to continue to be a thorn in their side."

Meade said former Attorney General Jeff Sessions' moves to limit asylum empirically changed immigration enforcement, first by using his legal authority to proclaim that gang and domestic violence are not valid grounds for an asylum claim.

"That seemed like a full frontal assault on the most common asylum claims from Central America," Meade said.

Sessions also drastically changed immigration practice by limiting forms of discretionary relief to asylum applicants. Administrative closure allowed immigration judges to permit an asylum seeker who fell short in their application to stay in the United States, mostly because they thought their claim was valid and did not want them returned to danger in their own country even though they did not obtain asylum.

But Sessions put an end to that, spurring a surge in asylum denials.

"This data was the first confirmation to me that 2018 really was an empirically different experience of immigration enforcement," Meade said. "Those discretionary measures that the Obama administration and previous administrations had used quite liberally were gone. They disappeared. Up and down the system, these practices that were built into immigration law and more or less continued for the first year of the Trump administration, this year they are gone, they are eroded dramatically. To the point where there is tremendous uncertainty."

The immigration drama of 2018 had much to do with how Trump pursued his priorities, Meade said.

"The volatility of the president's decision-making feeds it," he said. "Things like the decision to prosecute people for illegal entry under zero tolerance. This showed up to be an impossible fantasy and a terrible waste of resources. These are things that were just unthinkable before Trump took office."

As the back and forth over policy continues, individual migrants are suffering.

"There is short-term harm and damage done to hundreds and thousands of migrants and families," Meade said, "In that interim period between when they decide one of these policies and when it gets eventually gets shot down by the courts there is a lot of harm done and there is no real accounting for that."
Children of the migrant caravan

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