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Spend a week reading about immigration law and the current crisis on the border, and you may feel like you understand less than when you started.
The twists, turns, exceptions, and who-did-what-when is enough to leave The Wall Street Journal leading its Friday front-page coverage with this statement:
Changing, competing and contradictory explanations of the administration’s immigration policy spread confusion from Washington, D.C., to the Mexican border, leaving front-line law-enforcement and social-service agencies unsure of what will happen to thousands of children.
Among the unanswered questions: How will families be reunited now? And where will they all stay together? Officials at the Department of Homeland Security (DHS) told the Journal on Thursday night it was awaiting further guidance on those details.
The confusion underscores the massive logistical challenge the government faces in reuniting some 2,000 children with parents separated from them at the U.S. border over the last several weeks. It also underscores the legal challenges that could be ahead.
A 1997 consent degree (called the Flores settlement) requires the U.S. government to place unaccompanied immigrant children with a close relative or family friend, or to keep them in the least restrictive conditions possible.
In 2015, after the Obama administration began detaining some families together during an illegal immigration surge, a federal judge ruled the Flores settlement also applied to minors crossing the border with their parents—not just to those who come alone.
That means the executive order President Trump signed on Wednesday to keep families together in detention is nearly certain to face legal challenges unless Congress acts to make changes to the law.
Even as 2,000 children wait to be reunited with their parents in the coming weeks, the Pentagon confirmed it had received a request from DHS to provide up to 20,000 temporary beds for unaccompanied immigrant children at Defense Department installations.
That’s 10 times the number of children who have been separated from their parents at the border in recent weeks, and it highlights a massive category that hasn’t gained as much attention in the current debate: The thousands of immigrant minors who have crossed the border without their parents.
DHS reports it is currently housing 11,000 “unaccompanied” minors in temporary shelters and foster homes. (Some children separated from parents at the border may be included in that figure, although it’s unclear how many.)
This trend of youth migration goes back many years, but became a huge story in 2014, when tens of thousands of unaccompanied minors crossed the U.S. border, mostly flowing from Central America.
Most were teenage boys, but some were children as young as 4. (Authorities reported some children arriving at the border with phone numbers of relatives in the United States pinned to their clothes.)
Whatever their situation, it called for a huge response from U.S. immigration courts.
The problem: Even then, the courts were massively backlogged. I reported in 2014 that the U.S. immigration courts faced a backlog of over 375,000 cases.
I checked the figures on Friday, and the current number of pending immigration cases is 714,067.
In 2014, the United States had about 249 immigration judges. Current number: around 350.
As Congress plans to hold a vote next week on immigration legislation, many already predict the package won’t pass. President Trump has said Republicans should just wait to act until after the midterm elections—and count on a GOP landslide.
But with three-quarters of a million pending cases in U.S. immigration courts—including plenty of asylum cases that need to be heard—waiting doesn’t seem like a viable option, even if it means starting with basic relief for immigration courts.
My story in 2014 was called “System overload.” Four years later, it’s coming closer to a “system breakdown.”