Caitlin Dickerson

But a debate is growing over whether the criminal law should be eliminated entirely — fueled by an increase in prosecutions that began under President George W. Bush and a backlash against the Trump administration’s “zero tolerance” policy, which used the law to step up prosecutions and to justify separating migrant children from their parents.

The newly contentious statute, Title 8, Section 1325 of the United States federal code, makes entering the United States “at a time or place other than as designated by immigration officers” a misdemeanor offense, punishable by a fine and up to six months in prison. But many who cross the border illegally never face prosecution.

Some Democratic presidential candidates have embraced the idea of striking the provision entirely, including Julián Castro, a former housing secretary under President Barack Obama; Sen. Elizabeth Warren of Massachusetts; and Mayor Pete Buttigieg of South Bend, Indiana.

Yet others, including Beto O’Rourke, a former congressman who grew up along the border in West Texas, have said they would leave the law in place, instead favoring reforms that would admit migrants who are entitled to legal protection under asylum or other laws, while preserving the ability to punish those who enter illegally.

While some argue that the impact of a “decriminalization” of border crossings would be minimal, others say the issue is of grave importance — not only because of the way the law is written, but also because of how it could be used in a punitive fashion under a policy like “zero tolerance” in the future.

Prosecutions have expanded under three administrations

The provision that allows the federal government to criminally charge people for improper entry was rarely used until the Bush administration introduced Operation Streamline, a policy to ramp up prosecutions for illegal entry in the hope that it would serve as a deterrent to illegal border crossings.

Though government studies have shown that Operation Streamline was not an effective deterrent, the practice of criminal prosecutions continued to expand through both the Obama and Trump administrations.

Practically speaking, that has meant that people who are under civil deportation proceedings can suddenly face criminal charges and be brought before a federal judge. If they are convicted, they complete their criminal sentence before being moved back into immigration custody to finish out that legal process, which can end either in deportation or permission to remain the United States.

Immigrant advocates argue that the process is both confusing and unnecessarily duplicative. “It’s wasteful from a taxpayer dollars perspective and makes an already harsh enforcement system doubly harsh,” said Heidi Altman, the policy director of the National Immigrant Justice Center.

But proponents of the law say that it is important that there be real consequences to convey the seriousness of the offense.

But most illegal crossers are not prosecuted

Even under the Trump administration’s “zero tolerance” policy, under which prosecutions shot up by about 40% only a fraction of those who crossed the border illegally were prosecuted for doing so. The cases place a heavy administrative burden on federal judges, prosecutors and public defenders.

Operation Streamline allows for mass hearings in which dozens of migrants are processed at once — usually entering guilty pleas — often after only a brief discussion with a public defender. The hearings have been criticized by immigrant advocates who argue that they deprive migrants of their legal rights to due process.

Still, Streamline prosecutions have overwhelmed many of the nation’s federal courts. In the Southern District of California, for example, the court converted part of a garage to make space for more illegal entry prosecutions, and created a separate courtroom that is staffed in part by government lawyers who are on loan from Customs and Border Protection, rather than local federal prosecutors, to handle the increased workload.

Repeat offenders face more serious consequences

The Democratic candidates differ over whether they would go further down the decriminalization road to eliminate a second provision of the United States federal code, 1326, which makes illegal re-entry into the United States a much more serious felony offense, punishable by up to 20 years in prison and a fine. Some argue that provision is necessary to discourage people who have been deported from returning to the United States over and over again.

Regardless of whether they are prosecuted, though, people who are deported face civil penalties if they return and are caught. Already under the current law, anyone who is placed in “reinstatement proceedings” — meaning that they have been deported in the past — is ineligible for asylum and the pathway that comes with it to legal permanent residency and, eventually, citizenship.

Depending on where they are arrested, some who are in reinstatement proceedings may also be subject to mandatory detention. And unless they can prove a “reasonable fear” of returning to their home country (a higher bar than is required of asylum-seekers), they are subject to “expedited removal,” meaning that they can be swiftly deported again without going before an immigration judge.

Why repeal a law that isn’t widely enforced?

Many argue that some kind of criminal consequence is necessary to deter mass migration to the United States. But a growing number of Democrats favor eliminating the laws that criminalize illegal entry — even as a misdemeanor.

Warren, in arguing for repeal, said she is concerned with how the law could be used, particularly by Republican administrations bent on a punitive approach to immigration.

She pointed to “zero tolerance,” which forced the separation of migrant children from their parents when their parents were charged and transferred into criminal custody, because children are not allowed in such settings under the law. “As Americans, what we need to do is have a sane system that keeps us safe at the border, but does not criminalize the activity of a mother fleeing here for safety,” she said during a Democratic presidential debate in Detroit on Tuesday night.

Other candidates argue that decriminalization would not entirely block such stringent tactics as family separations in the future, and that it would eliminate important disincentives to prevent possibly large numbers of people seeking to cross the border without authorization.

“You are playing into Donald Trump’s hands,” Gov. Steve Bullock of Montana said during Tuesday’s debate. “The challenge isn’t that it’s a criminal offense to cross the border. The challenge is that Donald Trump is president, and using this to rip families apart. A sane immigration system needs a sane leader. And we can do that without decriminalizing.”

This article originally appeared in <a href="https://www.nytimes.com/2019/07/31/us/border-crossing-decriminalization.html" id="d4b6b27b-f79e-35dc-a067-2196d7babc15">The New York Times</a>.

Some Democrats Want to Decriminalize Illegal Border Crossings. Would it Work?

Crossing the border without permission is a crime, but the law prohibiting it has often gone unenforced since it was passed in 1929. Instead, most first-time violators are deported under civil, not criminal, proceedings.

With mounting federal initiatives to hold more and more migrants in custody, officials at Immigration and Customs Enforcement, which oversees long-term detention centers for migrants, are looking for additional space that can be rented inside existing jails, as well as fast-tracking the deportations of current detainees and releasing as many migrants as possible into the country to make room for newcomers.

In one initiative examined earlier this year, Department of Homeland Security officials looked at housing migrant children at Guantánamo Bay, Cuba, which has a dormitory facility that has been used in the past to hold asylum-seekers. The proposal to house migrant children from the southwest border there has not gained traction, perhaps because of the optics of housing young people adjacent to terrorism suspects, according to one official who had seen the proposal but was not authorized to discuss it publicly.

While there were no “immediate” plans to house migrant children at Guantánamo Bay, the Defense Department is attempting to identify military bases that might be used for that purpose, a department spokesman, Tom Crosson, said Monday.

Much of the administration’s focus in recent months has been on the southwest border, where the surge of migrant families seeking asylum has overwhelmed short-term holding facilities and left people languishing there for longer periods of time. But authorities already are confronting the next phase of detention, the long-term facilities in the interior of the country where many of the incoming migrants will eventually be transferred, and these also appear to be bucking under pressure.

Populations in the long-term detention facilities have grown markedly under President Donald Trump, both because of increasing border crossings and his administration’s aggressive moves to arrest more unauthorized immigrants in the interior of the country. ICE is currently housing 50,223 migrants, one of the highest numbers on record, and about 5,000 more than the congressionally mandated limit of 45,274.

In 2016, President Barack Obama’s last year in office, the average daily population of immigrants in detention dipped to 34,376.

This article originally appeared in <a href="https://www.nytimes.com/2019/04/22/us/immigration-detention.html" id="b0375c56-96ab-3cf5-a707-47959752330c">The New York Times</a>.

Federal immigration authorities faced with overburdened detention centers are scouring the country to find space to house migrants as the crush of asylum-seekers that has overwhelmed the southwest border spreads deep into the nation’s interior.

ICE Is Detaining Near-Record Numbers of Migrants, and Scrambling to House More

In one initiative examined earlier this year, Department of Homeland Security officials looked at housing migrant children at Guantánamo Bay, Cuba, which has a dormitory facility that has been used in the past to hold asylum-seekers. In February, the military awarded a $23 million contract to build a “contingency mass migration complex” at Guantánamo, a plan that would expand the existing facility to house 13,000 migrants and 5,000 support staff in tents.

The project appears intended primarily to accommodate a crush of migrants that might accompany a new crisis in the Caribbean. The proposal to house migrant children from the southwest border there has apparently not gained traction, perhaps because of the optics of housing young people adjacent to terrorism suspects, according to one official who had seen the proposal but was not authorized to discuss it publicly.

A detention crunch that homeland security officials described as already dire threatened last week to become worse with the announcement by Attorney General William Barr that the administration would soon begin mandatory detention of additional asylum-seekers, a move that, if implemented, could put thousands more in custody each month.

“It’s clear that all of our resources are being stretched thin. The system is full, and we are beyond capacity,” said Kevin McAleenan, the new acting homeland security secretary, speaking to reporters at a news conference on the border.

Despite its potential impact on the already congested detention system, a DHS press officer said the agency supported Barr’s order on the detention of asylum-seekers because it might discourage migrants from crossing the border to begin with.

Immigrant advocates said the detention crunch has been self-imposed by the administration and its policies.

Under Trump, ICE agents have been encouraged to arrest anyone living in the country without legal status, regardless of their criminal record, whereas the previous administration put a priority on arresting and deporting unauthorized migrants who were considered dangerous.

The Trump administration has also expanded collaboration with local sheriff’s departments to gain easier access to anyone in criminal custody who is also suspected of immigration violations. It has once again expanded the use of workplace raids — officials carried out the largest one in a decade earlier this month in Texas. And it has scaled back the use of humanitarian parole, which once allowed many asylum-seekers to roam freely and work with temporary permits while they waited for their cases to be resolved.

The result is an increasingly congested system of long-term detention centers around the country, with officials signaling the need for more resources to house more detainees, while immigrant advocates argue that there are humane and effective alternatives to detention.

“We have to remember that it is a choice to jail asylum-seekers, and it is a choice that is at odds with international human rights norms,” said Heidi Altman, director of policy at the National Immigrant Justice Center.

Altman pointed to orientation programs that have been used in the past to ensure that immigrants show up for court. Studies have shown that the programs are both cheaper than detention and have a proven track record of near universal court compliance.

To address the current crush of detained migrants, ICE officials are working urgently to both expand the current system and to purge it of anyone possible, according to two officials at the Department of Homeland Security who spoke under the condition of anonymity because they were not authorized to discuss internal operations. That effort involves scanning the records of the detained population to find anyone who is ready to be deported immediately, and to identify anyone who qualifies for humanitarian parole and can be released to make room for others.

Another idea, drafted in a memo from McAleenan in his new capacity as the acting homeland security secretary, would ask the Department of Justice’s Executive Office for Immigration Review to dedicate most or all of its resources toward processing the cases of detained immigrants — temporarily pausing the court proceedings of anyone who has already been released into the country. The memo has not yet been sent, according to the official who disclosed it.

Officials in Washington have also suggested to ICE field offices around the country that they begin to release immigrants who have been granted bond by judges but have not yet paid them — presumably because they cannot afford to — to make more room.

Many of these measures aimed at clearing out space could face opposition from the White House, since they run contrary to the very policies that are creating the problem — Trump’s often-stated desire to end what he calls “catch and release” of migrants at the border.

In recent months, ICE has also signed or expanded a series of contracts, procuring nearly 3,000 additional beds to house migrants in state and local prisons and jails across the country. Staff have been moved to run the new facilities, but that has further stretched resources at existing detention centers, making it harder to keep cases moving on track.

Medical providers at some ICE facilities have also complained about not having enough resources to maintain minimum requirements, and the officials who spoke on background said that some ICE detention centers had been forced to lower their populations recently because they did not have enough staffing to meet medical standards.

Watchdog groups that favor less immigration detention are warning that slapdash efforts to expand the ICE system could leave detainees at risk.

“You don’t have to take my word for it. Their own inspector general has looked into this and expressed concerns about oversight, conditions, inspections, contracting,” said Mary Small, policy director of the Detention Watch Network, referring to reports that have documented a long history of inadequacies with health care, sanitation, the use of force and legal access inside detention centers. “Whether by systematically overcrowding the existing system or rapidly expanding it, it’s logical to expect to exacerbate all of the underlying problems,” Small said.

Congress has control over ICE’s budget for detention, and Democrats have often tried to limit funds to rein in the agency’s ability to make arrests indiscriminately. Even before the spike in migrant crossings earlier this year, the agency had been on track to require additional emergency funds this fiscal year to keep pace with trends at the southern border. Though the majority of those crossing recently are members of migrant families, who are typically being released into the country rather than detained, tens of thousands of individual adults continue to arrive each month, most of whom will end up in long-term detention centers.

Because most migrant families are being released to await the outcome of their asylum cases, ICE’s three family detention centers are largely empty now. Facilities certified to house families have a capacity of only about 2,500 people, in any case. Currently, 675 members of migrant families are being detained in one of those facilities in Dilley, Texas. A second one in Karnes City, Texas, has been converted to house adults, to help with overcrowding elsewhere. And the third in Leesport, Pennsylvania, is empty.

ICE has historically found ways around congressional attempts to limit arrests, such as using its transfer authority to move funds from other parts of its budget into its account for detention. The agency also routinely arrests more immigrants than it is funded to house, pressuring appropriators to increase its funding in order to support the higher population numbers.

But the agency has faced political opposition from local officials around the country in its efforts to expand detention capacity. Last year, California passed a state law barring any new ICE detention contracts from being signed or expanded. And communities around the country have rallied to block plans for migrant detention centers in their regions.

This year, after public allegations of physical abuse against detainees, the local governments in Adelanto, California, and Hutto, Texas, pulled out of ICE detention contracts under pressure from constituents.

The small family was getting by with help from his wife’s parents until last week, when another crisis struck: Gonzalez Carranza was deported back to Mexico, a country he hadn’t seen since he was a teenager. His daughter, Evelyn, who is now 12, was left parentless, living with her grandparents, who share custody.

“I was in shock,” Gonzalez Carranza, 30, said of the moment he found himself in the back of a government vehicle in Mexico. Questions had raced through his mind. Why was he there? What would happen to his daughter? Hadn’t she been through enough?

As it turned out, Immigration and Customs Enforcement officials reversed their decision, and Gonzalez Carranza returned home to Phoenix on Monday. But the case that raised an outcry in Arizona is one of many that have slipped through the cracks of an increasingly strained immigration system.

Two trends — record-breaking numbers of incoming families seeking asylum and increasing arrests of immigrants without legal status already living in the country — are adding to the immigration court backlog, which now exceeds 800,000 cases. Officials throughout the system, from Border Patrol officers to government prosecutors, to the judges who oversee deportations, say they are struggling to keep up with the demands of an increasingly aggressive immigration enforcement agenda.

There is a long history of wrongful deportations that span several administrations and they are only rarely reversed, according to immigration lawyers.

In one recent case, Muneer Subaihani, an Iraqi immigrant who had lived in the United States for 25 years, was deported in 2017, in spite of a court order prohibiting the deportation of about 1,400 Iraqis. But he was only allowed back into the country in January — and it was the first time that anyone from Iraq who had been erroneously expelled had been allowed back in, the American Civil Liberties Union said.

Last year, another man identified in court documents only as W.G.A. was brought back to the United States after being wrongfully deported to El Salvador while his asylum case was under appeal — a situation that should have triggered an automatic temporary stay.

“It’s a chronic problem,” said Scott Shuchart, who worked in the Department of Homeland Security’s civil rights office from 2010 to 2018. “The number of cases that fall through the cracks of that system, it may be very low as a percentage, but it’s certainly nontrivial as a raw count of cases.”

Gonzalez Carranza was lucky, according to his lawyer.

The problems began last January when Gonzalez Carranza, who had entered the country illegally, went to his lawyer to renew a temporary permit to live in the United States that he had been granted based on his deceased wife’s military service. They learned that a removal case against him had been opened even though the permit was still valid, but he hadn’t heard about it because the notices had been sent to an old address. Months earlier, it turned out, he had been ordered deported.

Knowing that he could be arrested at any time, Gonzalez Carranza and his lawyer moved quickly to prepare documents to halt the deportation. But before the papers were filed, immigration agents arrested Gonzalez Carranza on April 8, pulling him over as he was driving to work. He said he remembered flashing lights and then “a lot of cops around me pointing guns, screaming, saying ‘Open the door!’”

Gonzalez Carranza had first entered the United States on his own at the age of 14 and moved in with an uncle in Phoenix. Rather than going to school, he started working for a carpeting company and met the woman who became his wife, Barbara Vieyra, at a nightclub for teenagers.

The couple moved in together, had their daughter, Evelyn, and they married. Soon after, Veiyra joined the Army to help support her family. She served in a military police unit in Korea and was 22 when she was killed in Afghanistan, according to news reports.

Gonzalez Carranza remained in the United States without permanent legal status, sharing custody of his daughter with his wife’s parents. His wife’s military service should have allowed him to remain in the country legally until April 20, 2019.

He could make none of that clear to the officers who came to arrest and deport him. During the days he spent in Mexico, Gonzalez Carranza said, he passed the time inside a Mexican government office because it was close enough to the border that his U.S. cellphone still worked and he was able to talk with his lawyer. He slept at a migrant shelter, mostly filled with people waiting to seek asylum in the United States.

Ezequiel Hernandez, his lawyer, said his client was finally allowed back into the United States on Monday after a government lawyer notified him that Gonzalez Carranza should go to the legal port of entry in Nogales, Mexico, within an hour. Hernandez said he was not certain why immigration authorities reversed their decision, but believed that media reports about the deportation may have contributed to the decision.

Immigration and Customs Enforcement officials did not comment on the case.

On Tuesday, a day after returning to Arizona, Gonzalez Carranza said he had still not seen his daughter, who was with her grandparents, but was looking forward to seeing her.

Hernandez said he planned to argue now that his client should be granted permanent legal status in the United States because of the extreme hardship that his daughter would face, compounded by the loss of her mother, if her father were to be deported.

“Usually it’s people that have no resources, no attorney,” Hernandez said. “What would happen if he didn’t have all of these things? He’d be in Nogales today and you would never know.”

This article originally appeared in <a href="https://www.nytimes.com/2019/04/16/us/soldier-spouse-deported-phoenix.html" id="7b30e7f4-35c4-38a8-a94d-3d71f63a7079">The New York Times</a>.

It was Jose Arturo Gonzalez Carranza’s 22nd birthday when he found himself suddenly alone to take care of his 3-year-old daughter. Army officials called him at work to tell him that his wife’s military police unit had been attacked in Kunar province, Afghanistan. She didn’t survive.

An Afghan War Widower Is Caught Up in a 'Chronic Problem': Wrongful Deportation

More than 76,000 migrants crossed the border without authorization in February, more than double the levels from the same period last year and approaching the largest numbers seen in any February in the last 12 years.

“The system is well beyond capacity, and remains at the breaking point,” Kevin K. McAleenan, commissioner of Customs and Border Protection, told reporters in announcing the new data.

Diverted by new restrictions at many of the leading ports of entry, migrant families, mainly from Central America, continue to arrive in ever-larger groups in remote parts of Arizona, New Mexico and Texas. At least 70 such groups of 100 or more people have turned themselves in at Border Patrol stations that typically are staffed by only a handful of agents, often hours away from civilization. By comparison, only 13 such groups arrived in the last fiscal year, and two in the year before.

More than 90 percent of the new arrivals were from Guatemala, officials said, with a significant change in the dynamics of the migration: While Central American migrants once took weeks to journey through Mexico to the United States, many Guatemalan families are now boarding buses and reaching the southwest border in as little as four to seven days “on a very consistent basis,” McAleenan said.

McAleenan also declared sweeping changes to the agency’s procedures for guaranteeing adequate medical care for migrants — an overhaul brought on by the deaths of two migrant children in the agency’s custody in December. The measures, which include comprehensive health screenings for all migrant children and a new processing center in El Paso, Texas, that would help provide better shelter and medical care for migrant families, were developed with advice from outside medical experts and pediatricians, the commissioner said. They are an attempt to fix years of health care inadequacies that have left many at risk.

The agency will also expand medical contracts to place health care practitioners — largely registered nurses and nurse practitioners — in “high-risk” and high-traffic locations along the border. It will also dedicate more money for translation services to meet increasing demand from Central Americans, many of whom speak indigenous dialects and may not be able to communicate their needs in English or Spanish.

“These solutions are temporary, and this situation is not sustainable,” he said. “This is clearly both a border security and a humanitarian crisis.”

The high number of families crossing the border suggest that President Donald Trump’s policies aimed at deterring asylum-seekers are not having their intended effect. Up to 2,000 migrants who traveled in a caravan from Central America last year and faced lengthy delays in Tijuana appeared to have given up their cause as of last month after being discouraged by months of delays at the border. But the families following behind them seem only to have adjusted their routes rather than turn back. Indeed, they are traveling in even larger numbers than before.

Beginning for the first time in October, members of families have come to outpace apprehensions of individual adult migrants. McAleenan said authorities believe this is a result of smugglers having effectively communicated across Central America that adults who travel with children will be allowed to enter and stay in the United States.

“Crossing with a child is a guarantee of a speedy release and an indefinite release into the United States,” McAleenan said.

Brian Hastings, the agency’s chief of law enforcement operations, said that since April 2018, border agents had detected nearly 2,400 cases in which migrants had falsely claimed to be related when they were not, or untruthfully claimed to be younger than 18.

The throngs of new families are also affecting communities on the U.S. side of the border. In El Paso, for example, which has seen a 434 percent increase in apprehensions during the current fiscal year, a volunteer network that temporarily houses the migrants after they are released from custody has had to expand to 20 facilities, compared with only three during the same period last year. Migrants are now being housed in churches, a converted nursing home and about 125 hotel rooms that are being paid for with donations.

“We had never seen these kinds of numbers,” said Ruben Garcia, director of the organization, called Annunciation House. He said that during one week in February, immigration authorities had released more than 3,600 migrants to his organization, the highest number in any single week since the group’s founding in 1978.

For the most part, Garcia said that his staff and volunteer workers had been able to keep up with the surge, often making frantic calls to churches to request access to more space for housing families on short notice. But sometimes their best efforts were upended, he said, including on one day last week, when authorities dropped off 150 more migrants than originally planned.

“We just didn’t have the space,” Garcia said.

Border Patrol officials said that the biggest “pull factors” encouraging migrant families to make their way to the United States were federal laws and court settlements that prohibit authorities from deporting Central Americans without lengthy processing, and from detaining migrant families for more than 20 days, after which they must be released into the country while they await immigration court proceedings. Others at the agency pointed to severe poverty and food insecurity in the western highlands of Guatemala, where many of the families are from, as a primary motivation.

As of Sunday, 268,044 migrants had been apprehended along the southwest border since the fiscal year began in October, a 97 percent increase from the previous year, according to government figures.

The larger numbers and the surge into more remote areas of the border have drawn new attention to long-standing problems with medical services provided by Customs and Border Protection. Migrant families, in particular, tend to arrive in urgent need of medical attention, the agency said, which has strained resources and drawn agents away from their law enforcement duties.

Last year, the agency referred 12,000 border crossers to emergency rooms for care, each one requiring an agent to wait with them at the hospital and ensure they were immediately returned to federal custody upon release. The rates of hospital referrals are increasing, the agency said, with about 145 agents per day currently acting as hospital escorts. Meanwhile, cocaine seizures for the current fiscal year have already exceeded the previous one, and methamphetamine seizures have also increased, according to the agency, a situation that also is demanding staff resources.

Historically, many migrant families have been released from custody almost immediately upon crossing the border because the capacity of facilities outfitted to house parents with children is much smaller than the number of people traveling as families. Immigration authorities have enough space to detain about 3,000 members of migrant families; more than 28,000 crossed the border in January.

Recently, though, the agency has also begun releasing single adults into the country because of backups that now extend to Immigration and Customs Enforcement detention facilities across the country, where adult detainees are traditionally held until their immigration court cases are resolved.

More than 50,000 adults are currently detained in ICE custody, the highest number ever, which has in turn begun to tax government lawyers, who are tasked with prosecuting their deportation cases, according to agency officials.

Yet the latest projections, based on intelligence gathered in Central America as well as patterns from previous years, suggest that the numbers of families traveling to the United States may continue to increase in the coming months.

Volunteer groups are trying to prepare for even greater numbers, and some of them are having to get creative.

In downtown Tucson, Arizona, a 50-room monastery, occupied by Benedictine nuns for 80 years, has been offered up by a local land developer as a temporary shelter to house migrants until July. Newly arrived migrants are checking in at the rate of about 100 a day, replacing families who secure bus tickets to join friends or relatives elsewhere in the country after staying one or two nights.

“I can’t imagine how we would manage without the monastery,” said Teresa Cavendish, director of operations at Catholic Community Services, which is operating the shelter.

This article originally appeared in <a href="https://www.nytimes.com/2019/03/05/us/border-migrant-apprehensions.html" id="771c52b5-8797-36af-abd7-7fd7959b47da">The New York Times</a>.

Border at 'Breaking Point' as More than 76,000 Migrants Cross in a Month

For the fourth time in five months, the number of migrant families crossing the southwest border has broken records, border enforcement authorities said Tuesday, warning that government facilities are full and agents are overwhelmed.

Diverted by new restrictions at many of the leading ports of entry, migrant families continue to arrive in ever-larger groups in remote parts of Arizona, New Mexico and Texas. At least 70 such groups of 100 or more people have turned themselves in at Border Patrol stations that typically are staffed by only a handful of agents, often hours away from civilization. By comparison, only 13 such groups arrived in the last fiscal year, and two in the year before.

McAleenan also declared sweeping changes to the agency’s procedures for guaranteeing adequate medical care for migrants — an overhaul brought on by the deaths of two migrant children in the agency’s custody in December. The measures, which include comprehensive health screenings for all migrant children and a new processing center in El Paso, Texas, that will help provide better shelter and medical care for migrant families, are an attempt to fix years of health care inadequacies that have left many at risk.

The throngs of new families are also affecting communities on the U.S. side of the border. In El Paso, for example, where most of the families are being processed after submitting their asylum applications, a volunteer network that temporarily houses the migrants after they are released from custody has had to expand to 20 facilities, compared with only three during the same period last year. Migrants are now being housed in churches, a converted nursing home and about 125 hotel rooms that are being paid for with donations.

As of Sunday, 237,327 migrants had been apprehended along the southwest border since the fiscal year began in October, a 97 percent increase from the previous year, according to government figures.

Under orders to end the process that the president calls “catch and release,” the authorities have arrested and jailed tens of thousands of migrants since Trump took office, and Republicans would like it to stay that way.

Democrats argue that ordinary immigrants around the country are being unnecessarily plucked from their families and jailed, and newly arrived migrants are being forced to wait unreasonable lengths of time in harsh detention centers.

At issue is how much money the budget should provide for detention. Without more money, the authorities will have to scale back on arrests.

“We’ll be releasing gang members. We’ll be releasing individuals convicted of domestic violence and drug crimes,” said Matthew Albence, deputy director of Immigration and Customs Enforcement. “We will not be able to respond to as many calls as we do today. And in fact, in many of these calls, we’re going to tell them, ‘Just release them,’ because we have no choice.”

Democrats point out that more than a quarter of current ICE detainees are not subject to mandatory detention under the law.

Both Republicans and Democrats are citing competing data to claim that the new budget proposal advances their goals. Here’s what the plan really says:

Why has the border wall taken a back seat?

Months of brinkmanship between Congress and the White House over the border wall have distracted from the issue of detention, which has now reached a breaking point, with the authorities being urged by the White House to arrest more immigrants than they can currently afford to detain.

With little support for a robust border wall on either side of the aisle within Congress, Republicans and Democrats have moved on to detention, which is also expensive, and has implications for recent border crossers as well as immigrants with firmly established roots in the United States.

Why are so many people being detained?

Trump’s strict enforcement agenda has pushed the population of detained immigrants to the highest levels in history, with the authorities sweeping into immigrant-heavy locales to arrest vast numbers of people who entered the country illegally, as well as those who have violated the terms of their visas (usually through criminal convictions), making them deportable.

Under sweeping policy changes introduced by Trump, ICE has gone after immigrants who were once not targeted, repopularizing workplace raids, arresting community leaders, and using previously frowned upon tactics to ferret out anyone who can be expelled from the country. As a result, the average daily population in immigration detention for the 2019 fiscal year has reached 45,890. ICE currently has funding to house only 40,520 people.

How are Republicans and Democrats both claiming a win?

Republicans are saying that they secured money for 5,000 additional immigration detention beds, while Democrats are saying that they managed to bring down detention numbers by 17.4 percent. Technically, both are true. Here’s why:

Both parties agreed in the proposal to fund an average daily population for 2019 of 45,724 ICE detainees, or about 5,000 more than the 2018 budget provided — allowing Republicans to claim their success.

But in order to reach that average by Sept. 30, the last day of the fiscal year, ICE will gradually have to decrease its detained population to 40,520, which represents about a 17 percent decrease from the 49,057 who are currently detained.

Why are some Republicans saying that the proposal allows for 58,500 beds?

Republican aides suggested in internal communications that the number of detained immigrants could reach 58,500 under the proposal through a process called reprogramming, which allows agencies to adjust their budgets to address unforeseen emergencies.

Under reprogramming, federal agencies can take money that has been appropriated by Congress for specific matters, and use it to fund other things. And though it is meant to be used sparingly, the Department of Homeland Security has often used reprogramming to fund extra detention beds.

Though it is a common tactic, Democrats argue that the amount of money that would need to be reprogrammed in order to reach 58,500 detention beds, $750 million, would be unprecedented.

And they argue that the congressional committees that are now controlled by Democrats would never approve such a large amount.

The Department of Homeland Security has historically deferred to such committees for approval before reprogramming funds, though it is not technically required.

What else is in the budget proposal?

The deal provides funds for $1.375 billion in physical barriers along the border, far less than the $5.7 billion that Trump requested for his border wall. The money could be put toward 55 miles of new fencing, using only “currently deployed designs.”

The proposal also provides funding to revamp holding facilities that are used by Customs and Border Protection, which came under renewed scrutiny after the deaths of two young migrant children around Christmas.

And it would refund Obama-era programs that were eliminated under Trump, which had provided alternatives to detention for certain immigrants. Those who had been enrolled in the programs were allowed to roam freely, using GPS ankle bracelets and other incentives devised to make sure they showed up for court.

This article originally appeared in <a href="https://www.nytimes.com/2019/02/13/us/immigration-detention.html" id="b64eb835-5e10-3daf-a125-c9f5e759961e">The New York Times</a>.

After prompting the longest government shutdown in history, President Donald Trump’s divisive proposal for a border wall has taken a back seat in recent days for negotiators in Congress who are seeking to avoid another crippling closure. The latest talks have focused on another immigration issue that has quietly exploded in recent months: Record numbers of migrants being held in cramped detention centers.

Border Deal Highlights an Issue that has Quietly Exploded: Immigrant Detention

Senior officials at the Department of Homeland Security said Wednesday that the Justice Department was developing a federal regulation that would give immigration officers the authority to collect DNA in detention facilities that are holding more than 40,000 people.

The move would constitute a major expansion of the use of a database maintained by the FBI, which has been limited mainly to genetic data collected from people who have been arrested, charged or convicted in connection with serious crimes.

Immigrant and privacy advocates said the move raised privacy concerns for an already vulnerable population that could face profiling or discrimination as a result of their personal data being shared among law enforcement authorities. The new rules would allow the government to collect DNA from children, as well as those who seek asylum at legal ports of entry and have not broken the law.

They warned that U.S. citizens, who are sometimes accidentally booked into immigration custody, could also be forced to hand over their private genetic information.

“That kind of mass collection alters the purpose of DNA collection from one of criminal investigation basically to population surveillance, which is basically contrary to our basic notions of a free, trusting, autonomous society,” said Vera Eidelman, a staff lawyer with the American Civil Liberties Union’s Speech, Privacy and Technology Project.

She said that because genetic material carries strong family connections, the data collection would have implications not only for those in immigration custody but also their family members who might be U.S. citizens, or have legal residence.

Homeland Security officials, in a call with reporters Wednesday, said the new initiative was permitted under the DNA Fingerprint Act of 2005. Up until now, immigrant detainees have been exempt from the law, they said, because of an agreement between Eric Holder and Janet Napolitano, who served as attorney general and homeland security secretary, respectively, under President Barack Obama.

The officials said the proposed rule was inspired partly by a pilot program conducted this summer along the southwestern border, in which Immigration and Customs Enforcement agents used rapid DNA sampling technology to identify “fraudulent family units” — adults who were using children disguised as their own to exploit special protections for families with immigrant children.

The new program would differ from the pilot in that it would provide a comprehensive DNA profile of individuals who are tested, as opposed to the more narrow test that was used only to determine parentage. And unlike the testing under the pilot program, the results would be shared with other law enforcement agencies.

The move is part of a wider Trump administration move to criminalize unauthorized border crossings, even in some cases when people have complied with federal immigration laws, such as presenting themselves at legal ports of entry into the United States to seek asylum.

Regarding that group, which is considered protected under federal asylum law, a senior Homeland Security official who spoke with reporters on condition of anonymity said, “There is a criminal aspect to that population.”

Crossing the border without documents and attempting to elude border authorities is a misdemeanor for first offenders.

After the DNA samples are taken, under the forthcoming regulation, they would be entered into the FBI’s highly regulated national DNA database. Known as CODIS, the Combined DNA Index System is used by state and law enforcement authorities to help identify criminal suspects. It is advertised on the bureau’s website as a “tool for linking violent crimes.”

In supplying the FBI and other law enforcement with the DNA of immigration detainees, federal authorities are jumping into an ethical debate about the use of DNA in criminal investigations. While such sampling has been crucial in securing thousands of prosecutions over the past several decades, it has also generated controversy because of the potential for abuse.

Trump administration officials did not provide a timeline for the rollout of the regulation but said that a working group was meeting weekly to introduce it as soon as possible.

This article originally appeared in

Government Plans to Begin DNA Testing on Detained Immigrants

The Trump administration is moving to begin collecting DNA samples from hundreds of thousands of people booked into federal immigration custody each year for entry into a national criminal database, an immense expansion of the use of technology to enforce the nation’s immigration laws.

Senior officials at the Department of Homeland Security said Wednesday that the Justice Department was developing a federal regulation that would give immigration officers the authority to collect DNA in detention facilities across the country that are currently holding more than 40,000 people.

The move would funnel thousands of new records to the FBI, whose extensive DNA database has been limited mainly to genetic markers collected from people who have been arrested, charged or convicted in connection with serious crimes.

There have long been calls to collect immigrant DNA records to help identify criminals who have previously been in immigration custody but may not otherwise be known to authorities. Congress passed a law authorizing a broad collection of DNA data in 2005, but at the time an exemption was put in place to protect immigrants.

A homeland security official said in a call with reporters Wednesday that the exemption was outdated, and that it was time to eliminate it.

“The DNA collection, including of immigration detainees, is something that is legally required,” said the official, who spoke on condition of anonymity in order to discuss the new proposal.

She said that because genetic material carries family connections, the data collection would have implications not only for those in immigration custody but also their family members who might be U.S. citizens or legal residents.

Homeland security officials said the new initiative was permitted under the DNA Fingerprint Act of 2005. Until now, immigrant detainees have been exempt from the law, they said, because of an agreement between Eric H. Holder Jr. and Janet Napolitano, who served as attorney general and homeland security secretary, respectively, under President Barack Obama.

A letter in August to the White House from the Office of Special Counsel cited an official whistleblower complaint alleging that immigration agencies had failed to carry out their full obligations under the law to collect DNA. It suggested that immigration authorities such as Customs and Border Protection already were carrying out limited DNA collections.

“The agency’s noncompliance with the law has allowed subjects subsequently accused of violent crimes, including homicides and sexual assault, to elude detection even when detained multiple times by CBP and Immigration and Customs Enforcement (ICE),” said the letter, signed by Henry J. Kerner, the special counsel. “This is an unacceptable dereliction of the agency’s law enforcement mandate.”

The officials said the proposed rule was inspired partly by a pilot program conducted this summer along the southwestern border, in which ICE agents used rapid DNA sampling technology to identify “fraudulent family units” — adults who were using children disguised as their own to exploit special protections for families with immigrant children.

Trump administration officials did not provide a timeline for the rollout of the regulation but said a working group was meeting weekly to introduce it as soon as possible.

The move comes amid a wider Trump administration push to criminalize unauthorized border crossings, even in some cases when people enter the country lawfully, such as those who present themselves at legal ports of entry to seek asylum.

Regarding that group, which is considered protected under federal asylum law, a senior homeland security official said Wednesday, “There is a criminal aspect to that population.”

President Donald Trump has often sought to link all immigrants, regardless of their legal status, to crime despite a significant body of research that has shown that immigrants are less likely to commit crimes than native-born citizens.

“We don’t have a statistical database of how many businesses immigrants create, or the ways they enrich our communities,” said Erin Murphy, a professor at New York University School of Law, who wrote a book documenting the misuse of forensic evidence in criminal investigations.

“But if the government has a way to say, ‘This is the number of immigrants we’ve linked to crimes,’ and this is something we already see anecdotally, we might lose sight of all the positive benefits, and that number we get might reflect something more about humanity than about immigrants as a class.”

The homeland security officials who discussed the new initiative said immigration agents would be trained to properly collect the data while respecting immigrants’ privacy rights. They said the Department of Homeland Security has “significant authority, particularly in the border context,” to collect DNA.

Though the constitutional right to privacy has been found under numerous Supreme Court decisions to apply to everyone within the United States, regardless of their immigration status, a much more restrictive interpretation of the Fourth Amendment has been applied within the 100-mile zone nearest the border, where suspicionless searches are allowed, even of U.S. citizens.

New Front in Immigration Fight: Collecting DNA

Only a handful of arrests appeared to take place, and they were reported in only a few cities. That was much different from the nationwide show of force that had originally been planned, in which Immigration and Customs Enforcement agents were expected to fan out in unison Sunday morning across immigrant communities in major cities. But authorities said more arrests would follow through the week.

The plans for the operation were changed at the last minute because of news reports that had tipped off immigrant communities about what to expect, according to several current and former Department of Homeland Security officials familiar with the matter. Instead of a large simultaneous sweep, the authorities created a secondary plan for a smaller and more diffuse scale of apprehensions to roll out over roughly a week. Individual ICE field offices were given the discretion to decide when to begin, one official said.

The first reports of ICE activity came in Friday and Saturday. In Chicago, a mother was a apprehended with her daughters, but the family was immediately released under supervision according to a person familiar with the operation.

In New York, ICE agents attempted two arrests Saturday in the Sunset Park area of Brooklyn, and a third in East Harlem, according to the New York Mayor’s Office of Immigration Affairs. “No arrests were made to our knowledge,” the office said in a statement.

An additional operation was reported in Florida.

Immigrant advocates in targeted regions of the country who were standing by to support anyone who was arrested were surprised to have a relatively uneventful day.

Sunday morning, about 30 volunteer “ICE chasers” had fanned out across the Atlanta suburbs, where many Latino immigrants live. But after nearly three hours without any reports of arrests, they returned to the offices of a local advocacy organization for coffee and doughnuts, saying they would start again Monday morning.

In Los Angeles, Shannon Camacho, a coordinator for the city’s rapid response network for immigrants, said the group’s work over the weekend, helping unauthorized families prepare for possible detentions, was not wasted. While there have been no mass arrests so far, she said, families are now better prepared for whatever happens in the future.

Camacho also warned against paying heed to speculation on the internet. “We do get a lot of false alarms on social media, and that causes a lot of panic in the community,” she said. “People are afraid to go outside, to go to church, to go to the grocery store, and that’s harmful.”

Immigration authorities planned to continue making arrests throughout the week in at least 10 cities. They had identified at least 2,000 targets for the raids, but may ultimately arrest fewer. Typically, only 20 to 30% of the targets of ICE enforcement are apprehended. And because agents cannot legally force their way in to the homes of their targets, they rely on the element of surprise to be successful — suggesting that the current, highly publicized raids could result in even fewer arrests than usual.

The operation is one of the first to target not just adults who are in the country illegally, but parents and children who are part of the recent wave of migrant families who have arrived from Central America and elsewhere on the southern border, many of them seeking asylum from violence in their home countries.

All those targeted have been issued orders of deportation, in many cases because they failed to appear in immigration court as directed. Migrant lawyers say that a large number of recent arrivals were not informed of their court dates and did not know where or when to appear.

The operation was originally scheduled for late June, but it was postponed after harsh opposition from Democratic lawmakers and immigrant advocates. Trump confirmed Friday that it would go ahead over the weekend.

“They’re going to take people out, and they’re going to bring them back to their countries,” the president said. “Or they’re going to take criminals out, put them in prison, or put them in prison in the countries they came from.”

Millions of people live in the United States without documentation and are periodically targeted for deportation. These raids in particular were planned because of Trump’s frustration over the record numbers of migrant families who have been arriving from Central America, beginning last fall and increasing in numbers nearly every month since then. June was the first month this year in which arrivals decreased. The 28% drop that month was probably caused by the rising summer heat and the Trump administration’s pressure on Mexico to hold back migrants seeking to travel through that country.

“This is about the rule of law,” Mark Morgan, the acting commissioner of Customs and Border Protection, told “Fox &amp; Friends” on Sunday. “Those individuals who remain here illegally, especially those who’ve received due process more than any other nation in the world would provide someone that came here illegally, to include those with final orders, that there are consequences to those that remain here illegally.”

Despite the operation’s low-key rollout, the threat alone was enough to spark concern and upend weekend plans for many unauthorized immigrations, including those who feared that the raids could sweep up far more people than just those who were targeted.

A small number of coordinated federal raids targeting undocumented migrant parents and their children took place over the weekend, the beginning of President Donald Trump’s plan to swiftly enforce deportation orders against thousands of recently arrived migrants who are not eligible to remain in the country.

Caitlin Dickerson

Articles written by the author

Some Democrats Want to Decriminalize Illegal Border Crossings. Would it Work?

ICE Is Detaining Near-Record Numbers of Migrants, and Scrambling to House More

ICE Is Detaining Near-Record Numbers of Migrants, and Scrambling to House More

An Afghan War Widower Is Caught Up in a 'Chronic Problem': Wrongful Deportation

Border at 'Breaking Point' as More than 76,000 Migrants Cross in a Month

Border at 'Breaking Point' as More than 76,000 Migrants Cross in a Month

Border Deal Highlights an Issue that has Quietly Exploded: Immigrant Detention

Government Plans to Begin DNA Testing on Detained Immigrants

New Front in Immigration Fight: Collecting DNA

ICE launches low-key raids targeting migrant families

ICE plan unfolds, with late switch from wide sweep to targeted raids

ICE launches low-key raids targeting migrant families

Hundreds of migrant children are moved out of an overcrowded border station

A family's ordeal to reclaim a baby taken at the border

ICE is detaining near-record numbers of migrants, and scrambling to house more

An Afghan war widower is caught up in a 'chronic problem': Wrongful deportation

Border at 'breaking point' as more than 76,000 migrants cross in a month

Another migrant with an illness has died in border patrol custody

Border deal highlights an issue that has quietly exploded: Immigrant detention