Q&A: Border protection commissioner talks ‘zero tolerance,’ family separations and how to discourage immigration
National immigration policy has shifted significantly in recent weeks, as the Trump administration implemented a controversial “zero tolerance” policy of criminally charging and detaining more migrants who cross the border illegally, separating parents from children.
So many migrants are being detained, the federal government announced plans to house children at military bases and adults at federal prisons, the largest in Victorville, Calif. At the same time, the number of migrants caught crossing the southern border has remained steady for the last three months.
We sat down to discuss the news with U.S. Customs and Border Protection Commissioner Kevin McAleenan during his visit to agents in Texas’ Rio Grande Valley, the epicenter of migration in recent years.
The interview has been edited for length and clarity.
Why did you come to Rio Grande Valley this month and last, and what have you learned from your visits?
It's our busiest sector border-wide for illegal crossings between ports of entry for the Border Patrol. It’s the sector with the highest amount of narcotics being smuggled between ports of entry. And it's one of our most critical locations from Laredo to Brownsville, with the eight ports of entry, in terms of trade and travel flowing through our ports.
So, you know, 10% of my workforce is in between Laredo and Brownsville and it's an important place to visit. And again it's our highest-tempo operation. So I need to stay very much in tune with what the challenges are our men and women are facing, understand them, understand what resources they need, how policy decisions are affecting them, to make sure that I'm on top of it.
Can you say anything about how many immigrants were caught crossing the southern border illegally last month? This would include people apprehended entering the country illegally and “inadmissibles” applying for asylum.
We've had consistent levels of apprehensions and inadmissible crossing since March. March and April were pretty much level at 50,000, both between apprehensions between ports of entry at that 36,000-37,000 level, and inadmissibles arriving at ports of entry between 12,000 and 13,000. So we remain day to day at those levels, which presents a number of challenges operationally.
Has “zero tolerance” had any impact, or is it too early to say?
It’s too early to say what the increased ability to apply consequences for crossing the border illegally — what effect that will have on the traffic coming towards us. The smuggling cycle is 25 to 30 days from a family or an individual making a decision in Central America to go to the United States and starting that journey with the smuggling organization. So the zero tolerance efforts have not been in place long enough to really assess how that's affecting the decision-making of folks attempting to enter our country.
What about other impacts of zero tolerance? Do you have enough space to hold people in the temporary holding areas?
U.S. Border Patrol has managed a consequence-delivery system for a decade or so. They’ve always sought to apply the appropriate consequences for someone entering the country illegally. If they're someone who's committed a crime in the U.S. — who’s coming back a second or third time — you want to make sure that's prosecuted and addressed with a successful repatriation.
So we've done significant numbers of prosecutions in the past in some areas of the border with courts and U.S. attorneys that have more capacity. Del Rio sector… has been a strong proponent of Operation Streamline [which quickly processes immigrants in the federal criminal court system]. We have more prosecutions happening routinely. So the notion of increasing consequences, increasing prosecutions for those crossing illegally, is not foreign to us.
What [zero tolerance] means: We prosecute more when we don't exempt categories of people crossing illegally from prosecution, that we just have additional processes to take with those individuals that are being set up for prosecutions. There are different forms and systems that we have to use to set up the prosecution for the U.S. attorney's office. That's an additional processing effort. But the intent is for that to dissuade crossing between ports of entry, which is dangerous for the people making those crossings.
We have significantly increased rescues in Rio Grande Valley sector this year for people that are in distress. You've seen the tractor-trailer cases, where smuggling organizations are putting people at risk by putting them in situations where they are in the back of a tractor-trailer with 100-degree heat with high humidity. It’s extraordinarily dangerous. They also pay smugglers much more money to cross illegally, which means that it strengthens transnational criminal organizations that are threatening the safety of Mexican citizens to our south and the security of the government of Mexico. Increasing prosecutors will hopefully dissuade that.
Do you have the capacity to deal with the number of people being apprehended now? There have been some reports of disease outbreaks. What lessons did U.S. Immigration and Customs Enforcement learn from the influx of migrants in 2014?
We learned a lot of lessons from 2014 and have created different processes, including the Central Processing Center [in McAllen, Texas], to help manage different flows. We have not seen a significant outbreak issue. We have not seen a significant increase in time in custody. It's essentially the same number of people; they're just being handled differently. Some of them spend time in U.S. marshals’ custody instead of going directly to ICE, but then they go to ICE after they are processed. So it's a different set of steps, but it's not a dramatic change in the overall level.
How are you handling the family separations?
We still have children in the same place where we had unaccompanied children.
It's really important for your readers to understand the difference between the concept of family separation and prosecuting adults who cross the border illegally, even if they are bringing in children with them.
We do not have a policy of administrative separation. We are not doing that. Families or people that come across as a group, as a family-unit group, are being separated only if the adults are being prosecuted or if there's a determination made by the agent that there's not actually a family relationship, which has happened several hundred times just in the sector this year.
We do see the attempt by smugglers and those crossing to try to exploit the loopholes created by court decisions which don't allow for ICE to detain family units through the completion of their immigration process. So they have to release them within 20 days. That means it’s incentivizing people to pretend to be families even if they're not. That’s [happened] 600 times just in Rio Grande Valley sector this fiscal year.
We're prosecuting the parents; they're temporarily separated for prosecutors. So they go to the U.S. marshals; they will be prosecuted by the U.S. attorney's office. Then they're detained by ICE while the child is sent to Health and Human Services, in the custody of HHS.
So that’s incentivizing people to come fraudulently with kids?
That's the catch-and-release loophole due to the interpretation of the Flores [2015 class-action lawsuit] settlement by the 9th Circuit District Court that says that ICE cannot detain families more than 20 days. So instead of being allowed to keep that family together through their immigration process, ICE is forced to release the family. So that's the loophole that incentivizes people to present as a family even if they're not.
Is there anything you can say about the U.S. potentially classifying Mexico as a “safe third country” for asylum seekers, which would force them to seek asylum there?
I've traveled to a refugee camp in Turkey, the Norway border with Russia, the southern border of Mexico with Guatemala — all to understand migration phenomena. And from those experiences, it's very clear that the best way to manage migration flows and to assist populations that are struggling in their home country is for destination countries and transit countries to be aligned, and for efforts to aid the populations in their country of origin.
U.S. policy very clearly, for this administration, is to support Central American security and prosperity. We need to invest in their governance efforts and their economic development and in their security against gangs, smugglers, drug cartels and so forth to help prevent the push factors from existing in those countries and to help support their economic development.
But migration flows respond to incentives and success. If they believe that they will be allowed to stay in the destination country, they will try to make it. If they believe that they will be slowed down or turned around by a transit country, that will change the process.
All you have to do is look at the Arctic route in Norway. In 2015, in three months,. 5,500 people from 38 countries arrived from Russia. The Norwegians worked with Russia to recognize the Russian asylum system and that shut down overnight — those 5,500 stopped coming.
With [German] Chancellor Angela Merkel and [Turkish] President [Recep Tayyip] Erdogan, they reached an agreement in 2015 on the flow of Syrian nationals through Turkey to Greece and said that they would support refugee camps in Turkey. Those flows stopped overnight from Turkey to Greece.
You need to collaborate on regional migration. Mexico has been a leader in the region. They've gathered Canada, Brazil, Colombia, Panama and the U.S. together to talk about ways we can all get better at managing our policies in this area. Continued dialogue would be outstanding — to partner with all countries in the region on migration flows.
What about critics who say the U.S. would be shifting the burden of these asylum seekers onto Mexico?
The most effective response to deter illegal flows of migration, of migrants, is detaining people through their immigration proceedings and effectively repatriating them.
This is what, during the Obama administration, [Department of Homeland Security] Secretary [Jeh] Johnson did when we had a spike in family units in 2014. He detained them in a DHS facility through their immigration process and actually removed them back to Central America. That was highly publicized with the leadership of Guatemala and Honduras. They don't want their youth and energy to leave, so they are welcoming them home. And that created a dramatic deterrent. Crossings of family units dropped off almost immediately from that successful high-profile repatriation.
The challenge we have now is that tool of detaining families through their immigration procedure has been taken away by subsequent court decisions.
Immigrants who say they are fleeing persecution have long been allowed to approach U.S. officials to apply for asylum. There were some reports about asylum seekers getting turned back on border bridges to Mexico — has there been any policy change?
When our ports of entry reach capacity, when their ability to manage all of their missions — counter-narcotics, national security, facilitation of lawful trade — is challenged by the time and the space to process people that are arriving without documents, from time to time we have to manage the queues and address that processing based on that capacity.
Does that mean people are turned away, or they're turned away temporarily but they can come back?
We're not denying people approaching the U.S. border without documents. We're asking them to come back when we have the capacity to manage them.
So there's been no change in terms of migrants with paperwork being allowed to seek asylum at ports of entry?
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