NEW YORK, NY - AUGUST 15: White House Chief of Staff Gen. John Kelly looks on as President Donald Trump speaks following a meeting on infrastructure at Trump Tower, August 15, 2017 in New York City. He fielded questions from reporters about his comments on the events in Charlottesville, Virginia and white supremacists. (Photo by Drew Angerer/Getty Images)
Dem: Separating immigrant kids 'cruel and unusual'
06:28 - Source: CNN
Washington CNN  — 

The Trump administration on Tuesday sought to blame Democrats for what it calls a “border crisis,” claiming that Democrats were standing in the way of much-needed laws.

The reality is more complicated, and the blame cannot be placed squarely on Democrats.

In a call with reporters, White House top adviser Stephen Miller made a series of assertions in his argument that Congress should pass laws sought by the administration on illegal immigration, particularly migration by families and children.

“The current immigration and border crisis and all of the attendant concerns it raises are the exclusive product of loopholes in federal immigration law that Democrats refuse to close,” Miller said, citing a law to combat human trafficking, asylum law and court settlements that have protected children from detention.

“These are all provisions that the administration has sought to rectify and sent proposals to close these loopholes, and the only reason they’re not in law, those fixes today are exclusively and solely because of Democrats and only because of Democrats in Washington,” Miller continued. “If we were to have those fixes in federal law, the migrant crisis emanating from Central America would largely be solved in a very short period of time.”

Here’s the reality.

Reality check: A ‘crisis’ at the border

In March and April of this year, there was a seasonal uptick in illegal border crossings, resulting in roughly 38,000 apprehensions of people crossing illegally each of those months. With just over 16,000 Border Patrol agents stationed at the southern border, that comes out to roughly two-and-a-half apprehensions per agent per month.

In most every year tracked except for last year, crossings tend to trend upwards in the spring, as weather for the journey improves.

The numbers for 2018 are still consistent with Obama administration years – slightly below fiscal years 2013 and 2014 but slightly above 2015 and 2016.

The crossings in April of this year were more than triple April 2017, but that comparison is distorted, as crossings last April were at lower levels unseen in modern history before they started to pick up and stabilize more in line with recent years.

Crossings have been trending downward for decades and are at historic lows, prompting Homeland Security to declare last fall that the border is the most secure than it has ever been.

In fiscal year 2017, there were just over 304,000 apprehensions of people crossing the border illegally – the lowest ever recorded, DHS said at the time, touting it as a 40-year low. In the first seven months of fiscal year 2018, there have been 211,821 apprehensions, a pace that would slightly exceed last year’s level.

The administration has complained in particular about the greater share of these crossings that involve children and family units, which have picked up in recent years, but are not inconsistent with the last few years of the Obama administration. In fiscal year 2017, family units were roughly 25% of all apprehensions and unaccompanied children accounted for roughly 14%, according to Customs and Border Protection statistics. Last month family units were 25% of apprehensions and unaccompanied children were another 11%.

Reality check: Blaming ‘loopholes’

The administration has branded as “loopholes” a series of laws that are designed to provide human rights and due process rights protections to immigrants, especially children.

“To be clear, asylum is not a loophole. Seeking asylum and the right to asylum is not a loophole, it is an international right and a right that is guaranteed by our own laws,” said Michelle Brané, the director of the Migrant Rights and Justice program at the Women’s Refugee Commission, on a call with reporters Tuesday afternoon.

The Trump administration has been trying to tighten the rights of asylum seekers, a policy under international law and US law that says non-citizens who can show they are likely to be persecuted in their home countries can legally stay in the US. If an immigrant tells an officer at the border that they fear persecution, they are given a “credible fear” test to determine if they may have a claim. Based on US Citizenship and Immigration Services data, the credible fear passage rate was nearly 80% in fiscal year 2017, which takes into account that these individuals are likely to be traumatized, unfamiliar with US law and have little English-language skills.

Because of a massive backlog in the immigration courts, it can take years for those cases to work their way to completion, and many immigrants are given the ability to work and live in the US in the meantime, putting down roots. The funding for immigration courts and judges has increased only modestly over the years as funding and resources for enforcement have increased dramatically.

The administration points to the much lower percent of asylum claims that are eventually granted as a sign that there are too many asylum claims. But statistical analyses have also shown that immigrants are far more likely to appear in court and win their cases when they have legal representation, something they are not guaranteed or provided by the government.

Miller also attacked the 2008 Trafficking Victims Protection Reauthorization Act and a 2015 court ruling on what’s known as the Flores Settlement Agreement, a court case that goes back decades. Both created protections for children in immigration custody. Unaccompanied minors from non-neighboring countries must be turned over to the Department of Health and Human Services for resettlement within three days of arrest, as opposed to being held in lengthy detention, and children with their families also cannot be held in lengthy detention.

Miller said that because the Flores case prohibits the detention – essentially jail-like conditions – of children longer than three weeks, families are almost always released while they await court proceedings that will take much longer and that is a “loophole.” He also complained that TVPRA requires the government to transfer children out of DHS custody and try to find them a suitable sponsor or family member to live with in the US and doesn’t allow the administration to merely turn unaccompanied children around at the border, allowing them to pursue their claims in court.

Democratic Sen. Dianne Feinstein, who helped sponsor the original TVPRA in 2008, has strongly pushed back on the labeling of these laws as “loopholes.”

“These are not loopholes,” Feinstein said at a recent hearing. “They are laws that Congress passed to address the documented injustices facing children in our immigration system – specifically the government’s failure to treat these children humanely after decades, decades.”

Reality check: The ‘loopholes’ are the ‘exclusive’ cause of migration

Some argue, as the administration does, that Central American migrants come to the US as families or as children alone to “exploit” the laws that exist to protect them and that by making it more difficult to seek protections, they will stop coming.

The administration offered no evidence of its position, with Miller saying, “it’s just common sense.” Migration trends have continued even as administrations have sought to telegraph crackdowns at the border.

Studies have found that migration from Central America is largely driven by conditions at home, where poverty, violence and gang activity are extremely high. Until those factors are improved, a Migration Policy Institute study concluded, flows to the US north to the border will continue.

Reality check: Democrats are the only obstacle to change

Miller’s assertion that Democrats are “exclusively and solely” blocking changes to the law and court decisions – which Congress cannot overrule – is not backed up by evidence.

It is true that Democrats have been united in opposing most of the administration’s immigration efforts, but they are not alone in rejecting some of the proposals.

A White House-backed bill earlier this year, which included hardline immigration measures, border security and drastic cuts to legal and family-based migration as well as a path to citizenship for certain young undocumented immigrants, got only 39 votes in the Senate, including those of three Democrats.

A bipartisan proposal that did not include such hardline measures got 54 votes, including eight Republicans and nearly all Democrats.

In the House, a proposal from immigration hardliners that also meets much of Trump’s wish list has languished. Republican leadership has consistently told conservatives pushing the bill that it would not have nearly enough Republican votes to pass.