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Plain answers to complex questions about border crisis A vexing crisis at the border

I’ve been having a hard time understanding just exactly what the dimensions of the border crisis really are. Trying to fix that, I’ve spent the past few days talking to people all over the capital and the country trying to get plain answers. Some of what I found surprised me: For instance, of the nearly 51,000 children who have been detained at the border so far this year, 88 percent have already been placed with family members.

More than half of the kids are living with a parent while the immigration status is determined. Turns out, children stuck at the border represent just a faction of the total who have arrived since October.

So what follows are three explainers I hope will provide straightforward answers to some of the questions I had about what is happening at the border and why.

The first explainer looks at the situation on the border itself, where some 51,000 unaccompanied Central American children have been stopped at the border this year.

A second explainer looks at the specific proposals President Obama and his critics in Texas have put forward to solve this crisis. Along the way it will answer a simple question: Why are so few of the children ever deported, as the law and the President say they should be.

Finally, a third explainer focuses on what Dallas County can expect, should the Obama Administration agree to put up to 2,000 of the children in temporary shelters, as proposed by County Judge Clay Jenkins. – Michael Lindenberger

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PART 1

What’s the immediate crisis? News reports that 50,000-plus Central American children have been stopped this year at the border with Mexico make it easy to believe tens of thousands of them are being held there in cramped conditions. The actual numbers are much lower.

On the day Jenkins visited one of the border patrol holding cells in McAllen last week, officials told him a total of about 2,300 unaccompanied children were being held in jail-like cells throughout the Rio Grande Valley, which accounts for most of the children nationwide. The number in custody had been closer to 3,000 the previous day, Jenkins said, before hundreds were moved to a brand-new 600-bed emergency facility at Fort Sill, Okla.

Those numbers were already higher than just a month ago, when border officials told Congress that 2,168 unaccompanied children from Central America were being held by the Department of Homeland Security in facilities in Texas, Arizona, and California. (Read report summary here.)

How many have arrived this year? Most of the unaccompanied children arriving at the border have long since been moved away from the border to more comfortable settings. But the sheer numbers are nonetheless eye-popping.

Since the fiscal year began Oct. 1, border authorities have transferred 50,946 unaccompanied minors to the custody of the HHS. Last year, about 25,000 such children were turned over to the department. In 2012, the number was close to 14,000.

What do we know about these children? Only children from countries that don’t touch our borders – in other words, children not from Canada or Mexico – are eligible to be turned over to the HHS custody.

According to news reports, most of them are from Honduras and Guatemala. HHS makes an annual report to Congress each year, and its most filings – covering the 2012 fiscal year – suggest that about three-quarters of the children are boys. And most of them are 14 or older.

Why are the children piling up at the border? New children are showing up so fast at the border than there isn’t enough time to move children who are further along in the process out fast enough to find beds for all of the new arrivals. Last month, border officials said between 150 and 300 arrive new each day.

Is the problem too few beds at the CBP facilities? Yes and no. The new beds opened up at Fort Sill, for instance, are helping. But the real problem isn’t at the border.

The border facilities are over-crowded because of logjams further down the line. In fact, under ordinary circumstances, the vast majority of the children stopped at the border would have no reason to remain at the border for longer than a few hours. Federal law is supposed to absolutely cap their stay at three days.

HHS contracts with welfare agencies and private non-profits at 94 facilities across the country where children are provided housing and a range of other services. This allows them to be cared for while immigrations officials determine whether they can be deported.

But so many children have arrived this year that HHS is having trouble finding beds for all the children they are supposed to care for, and as a result children are being held at the border for more than 72 hours.

Is there where Jenkins and Dallas County come in? Yes. If Jenkins has his way, the Obama Administration will sign a 120-day (renewable) contract to use two unused buildings in Dallas and one in Grand Prairie to shelter as many as 2,000 of the children. This would, Jenkins said in an interview late Wednesday night, allow the HHS to take custody of the children currently stuck at the border and provide the full range of care that the law calls for.

Meanwhile, the administration could plan a more permanent solution by either expanding its network of contractors nationwide, or building one or more large groups facilities for future use.

Why does HHS go to such lengths for children who are almost certainly here without legal right?The Homeland Security Act of 2002 for the first time transferred responsibility for unaccompanied children stopped at the border away from immigration officials and instead made the HHS responsible for them. The idea was to care for them as children rather than as violators.

But it was the Traffic Victims Protection Reauthorization Act of 2008 that made the most important changes. It introduced the rule requiring border officials to transfer to the HHS custody of any children from countries other than Mexico or Canada. It also introduced a new standard for how the HHS must care for the children once it received them.

That agency, in turn, is required to see to it that the child is “promptly placed in the least restrictive setting that is in the best interest of the child.”

What does ‘best interest of the child’ mean in practice? The idea behind the 2008 law was to treat the children more like potential refugees than would-be immigration scofflaws. In almost all cases, the children would be forced to eligible for deportation, but the law now required that they both be given a hearing before they were sent back – and generous care and treatment while they waited for a resolution.

Under ordinary circumstances, the first step for the child is at one of the 94 facilities operated by contractors on behalf of the HHS. There they receive schooling, food, counseling and other services.

But their stay at these facilities is typically brief. Last year, according to officials at the HHS’s Office of Refugees and Relocation, the average child stayed in HHS custody between just 30 and 55 days.

What happens after they leave HHS custody? Of the 51,000 children transferred to HHS custody since Oct. 1, officials says fully 88 percent of them have already left HHS custody and are now living with a family member, friend, or other guardian or sponsor. More than half of them have been placed with a parent, said Kenneth Wolfe, a HHS spokesman.

Wolfe added that once the children leave HHS custody, they are no longer tracked by his agency. “Once a child is discharged from the UAC program, we do not have jurisdiction,” he said.

That’s precisely what bothers many of President Obama’s critics. I’ll shed some light on the underlying conditions in a second explainer due out early Thursday.

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PART 2

Where do the children go once they leave the HHS-funded shelters? HHS officials begin looking almost immediately for longer-term arrangements for the children. It’s part of the “least restrictive” standard baked into a 2008 law requiring that the government accommodate the child’s “best interest” in finding the shelter arrangement that is “least restrictive.”

Think child welfare rather than detention. In practice, it means looking for relatives, friends and other adults already living in the U.S. who agree to foster the children until their immigration status is determined. Once a suitable guardian is found, the child is transferred and the government’s custody ends.

How does the government keep track of the children? Poorly, according to many critics. Here’s how it works: Each child is given a “notice to appear” – a legal document that obligates the child to show up from a hearing before an immigration judge. Once in court, an immigration judge conducts a hearing to determine if the child can stay. In most cases, there is no legal reason for the child to stay and the judge can deport the child.

What’s the problem? There are two. First, with so many immigration cases backlogging the courts, the hearings are often one or two years into the future. During that time, the child is free of direct supervision of the government.

Secondly, there is little done to ensure that the child shows for the court hearing. Sen. John Cornyn said this week that 90 percent of the children issued a “notice to appear” citation, simply never show up.

I wasn’t able to confirm that number. But nobody seems to dispute that many of the children simply skip their court dates.

Gov. Rick Perry called this a product of a “catch and release” approach to border enforcement in a letter to the President Thursday.

Why do critics blame the President’s policies?They cite a 2011 memo by Immigration and Customs Enforcement Director John Morton. In it, he ordered ICE agents at every level to use “prosecutorial discretion” in deciding which immigration cases to pursue.

The memo (read it here) said the government’s resources should be spent stopping drug runners, human traffickers and other criminals seeking to enter or remain in the country.

Unaccompanied children from Central America rank pretty low on those priorities. So rounding up those that miss their court date hasn’t been a priority for ICE.

Does everyone think that’s a problem? Not everyone. Opening our borders to children who are fleeing their country wouldn’t be a catastrophe, some activists and others argue. And the United Nations High Commission on Refugees argues in a recent study that many of the children coming from Central America are entitled to special protection on humanitarian grounds.

What does the President say?The best way to fix that is to speed up the court processes that will allow speedier deportations decisions, he says. That’s why more money for more judges is one part of his request to Congress to provide $3.7 billion in emergency funding.

So what would Republicans do? In short: They want to stop treating Central American children differently than Mexican children. That means they would be kept in custody until a quick determination of their status can be made – and then, in most cases, be deported.

That would require changing the 2008 law, and remove the language about “best interest” of the child and “least restrictive” conditions.

Perry favors that, and for the most part so does Cornyn. In a call with reporters earlier this week, he said it’s not as important whether HHS or border officials have custody of the children. What counts he said is that faster decisions be made and that the children remain in government custody while they their fates are decided.

Would the President accept that change? It’s not clear. The White House initially signaled it may be ready to propose changes to the 2008 law to keep a tighter lid on children arriving from Central America. But none of that was evident in the request he has made to Congress.

What’s next? Some brinksmanship, likely. GOP leaders control the House and the House controls the purse strings. Leaders there will want to use the request as a chance to demand the changes, including perhaps the ones Cornyn and Perry have called for.

The President and his supporters, including Dallas County Judge Clay Jenkins, want a speedy response to the request for more money, free of entangling demands. For his part, Jenkins said the Congress should save wrangling over immigration policy until later. “It’s morally wrong to use children caught up in a humanitarian crisis as leverage,” he said. “Now’s the time for the Congress, and particularly the Texas delegation, to step up and do their part.”

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PART 3

What kind of shelter does Jenkins have in mind for Dallas County? Jenkins wants HHS to pay for contractors to set up large-scale temporary shelters for up to 2,000 children who would otherwise be kept at the border waiting for spots to open up at HHS’ other shelters.

Would these be permanent? No. Jenkins says that these shelters are intended to only be used for several months, enough time for HHS to expand its capacity beyond the 94 facilities it already funds nationwide. The purpose is to allow HHS to take custody of children who are currently stuck at the border in crowded conditions because there is no room at the HHS facilities elsewhere. He said he expects the HHS would sign a 120-day contract, which could be renewed.

How likely is that HHS will agree to this proposal? It’s not clear. The department has said it is evaluating lots of options, including proposals to use federal facilities like military bases or other property as temporary shelters. Jenkins, however, says he has been in near-constant discussions with the bureaucrats in Washington and believes it is “very likely” they will agree.

If they do agree, how soon would the children begin arriving? Jenkins says they could be here, at least the first wave of them, by the end of July. Two of the buildings are ready and a third needs some small preparations. In addition, the buildings would have to be inspected closely and any final arrangement would involve contracts with the Dallas Independent School District, which owns two of the buildings, and the County, which owns the third.

How would the Dallas County shelters be different than the conditions on the border? In short, they’d be shelters designed to care for the children, not border enforcement holding pens.

There are several thousand – the numbers fluctuate but in recent days they’ve stood at 3,000 or more – children stuck at the border in extremely crowded conditions. HHS takes custody of the children and sends them to facilities around the country – except for now, they are having troubling find beds to send to.

The HHS facility in Dallas would provide food, clothing, shelter and a full range of services to put the children’s best interest first.

How would the Dallas County shelters be different than the other 94 shelters used by HHS nationwide? The spirit, or intention, behind these shelters would be similar: Namely, to care for the children in way that puts their interests first. And, as at the other facilities, the children would likely only spend several weeks – perhaps as much as two months – at the shelters.

But the Dallas shelters would also be very different. Jenkins wants HHS to use the three buildings to create large emergency shelters. Elsewhere around the country, the 94 facilities range from small group homes where between six and 18 children live, to larger group shelters. But even the latter are capped at about 200 beds.

“We believe there are economies of scale involved when you have so many children who are coming from the same area in need of the same kinds of care,” Jenkins explained.

Precise details of how and what the conditions would look like aren’t set. But a useful guide would be dormitory like conditions with large rooms of beds. Unlike the conditions at the border, where children are kept in holding cells often without beds, these shelters would be aimed at providing care, not serve as holding cells.

What kinds of services are provided? Even though the children’s stays in the HHS-funded facilities are brief, they are full of services. HHS pays for translators, food, shelter, basic medicine, counseling and more.

Who provides those services? In 2014, HHS awarded at least 50 grants, according to a database of federal spending. Three of the largest recipients are in Texas. Together, San Antonio-based Baptist Child and Family Services, Southwest Key Programs of Austin and Catholic Charities in Houston have been paid more than $100 million this year. Other big recipients include Catholic Charities in Chicago

How much does all that cost? HHS’s budget for this fiscal year ending Sept. 30 is $868 million. In addition, the Secretary of HHS transferred another $44 million in emergency funds.

That’s a lot. But is it enough? No. Secretary told Congress Thursday the program is running out of money fast. That’s why President Obama has included a request for $1.8 billion for HHS as part of the nearly $4 billion he has asked for to respond to the border crisis.

Will HHS need the extra money to carry out any plans in Dallas? That’s not clear, but it appears likely. Jenkins said last week that funding was a sticking point in his ongoing conversations with HHS.

If HHS does decide to fund shelters in Dallas County, will local companies get any work? That will be up to HHS, which makes all final decisions on contracts. But Jenkins says he’s hoping to persuade them to use Dallas business and faith-based non-profits to provide a layer or compassion on top of the normal services provided for the children.