U.S. border enforcement policies and resources have failed to manage current extraordinary migration events, particularly ones involving vulnerable populations. Mass migrant groups and changing migration patterns that lead to a higher number of arrivals at the U.S. border seeking asylum are often identified months in advance, yet we continue to respond reactively, rather than proactively, to these events.
The United States needs a flexible, nimble response plan to address and manage dramatic shifts in migrant flows. We need to establish a FEMA-like capacity for these immigration events.
The National Response Framework (NRF) guides the nation’s response to a major disaster, regardless of cause or size. Although closely linked to the Stafford Act, the NRF is always in effect and does not require a formal Stafford Act declaration to be used. The NRF establishes 14 different Emergency Support Functions (ESF) to organize the response capabilities of the federal government. ESFs group federal agencies with pertinent authorities, resources, and expertise to accomplish a set of tasks needed in disaster response.
The NRF can be used as a model to develop a similar coordinated, inter-agency response to the current and future extraordinary migration events.
However, the current authorities do not support this response because:
- The current “emergency declaration” authority for a FEMA-like response may not be available for immigration-related events that emerge over time.
- Existing FEMA emergency authorities compel support from other federal agencies on a reimbursable basis and are tied to a national emergency declaration. Without such a declaration, other government agencies can only provide support out of existing resources and authorities, upon request.
- The immigration and border agencies have fewer authorities and capabilities to work collaboratively with non-governmental humanitarian and relief agencies through grants, cooperative agreements, or to accept donations of goods, services or facilities that FEMA uses in response to a declared emergency.
- Coordination among all levels of government—federal, state, local, and private sector and non- governmental organizations—that is the hallmark of a FEMA response is absent in response to immigration events.
Authority to Declare an Extraordinary Migration Event
A presidential declaration of an extraordinary migration event could be made at the request of the Secretary of Homeland Security or a state or local governmental entity. Such a request should be based on a finding that the event is of such a magnitude that an appropriate, timely, and effective response is beyond the scope of the existing infrastructure and staffing levels of the Department or local community or governmental resources.
Appointment of a Federal Coordinating Officer
Immediately upon the declaration of an extraordinary migration event, the President will appoint a federal coordinating officer who can:
- Make an appraisal of the types of resources most urgently needed.
- Establish field offices as they deem necessary and as authorized by the President.
- Coordinate the administration of assistance and support to the Department of Homeland Security (DHS) by other federal departments and agencies, related activities of state and local governments when requested by those governments, and other relief and assistance organizations operating in the area and providing services to migrants in response to the extraordinary migration event.
Formation of Migration Support and Response Teams
Upon declaration of an extraordinary migration event by the President, the Secretary of Homeland Security will form support and response teams to be deployed to assist the federal coordinating officer in multiple ways including:
- Coordinating the construction of larger, specialized migration processing facilities with additional staff from other agencies, state or local governmental or non-governmental entities to assist with the humanitarian needs of the arriving migrants.
- Working with U.S. Customs and Border Protection, FEMA, and the Department of Health and Human Services (HHS) and other appropriate organizations to set up temporary housing for migrants. The facilities would operate like disaster relief centers for affected communities that provide individuals with shelter, food, and access to medical and other relief services.
- Coordinating with the HHS National Disaster Medical System to provide these facilities with doctors and nurses that would provide medical assistance to these populations. FEMA Corps and other volunteers from Department of Defense medical staff or national guard could provide additional humanitarian support to these facilities.
Formation of Asylum/immigration Processing Teams, Additional Judicial Resources
Upon declaration of an extraordinary migration event by the President, the Secretary of Homeland Security will undertake various actions designed to process an additional volume of asylum or other immigration claims in a timely manner, including:
- Reassigning asylum officers and interpreters to CBP border facilities or temporary housing facilities to form asylum processing teams responsible for the asylum interview process after migrants arrive to the processing facility. The teams would process each case within 20 days to ensure that families can present their cases together.
- Authorizing asylum officers to adjudicate asylum claims in the first instance and approve “clearly approvable” cases without resorting to an immigration court. Working with the Department of Justice to create new border courts with newly hired judges (who do not have existing caseloads that would be displaced) located near the DHS processing facilities who would prioritize processing the cases from recent arrivals at the U.S.-Mexico border.
- Working with the Department of Justice (DOJ) to expand the cadre of immigration judges by 110 percent to ensure that the immigration court system can process influxes of complex cases without sacrificing its ability to effectively review asylum and removal cases.
- Working with DOJ and DHS to establish an “On Call Reserve” of retired judges and asylum or immigration adjudication officers or other qualified individuals (subject to mandatory annual training to remain eligible for call up) that could be activated on short notice to address migration events.
Use of Coordination and Relief Organizations, Grant Making Authority
- The Secretary may utilize, with their consent, the personnel and facilities of relief organizations to provide essential services including housing, temporary shelter, medical, legal, or other essential services.
- The President is authorized to enter into agreements with relief organizations under which the activities of these organizations may be coordinated with the federal coordinating officer. Any such agreement will include provisions assuring that use of federal facilities, supplies, and services will follow regulations prohibiting duplication of benefits and guaranteeing nondiscrimination.
Notification to Congress and Reporting Requirements
- Within 30 days of a presidential declaration under this title, the President will submit to Congress a report outlining the additional resources used.
- Authority to request supplemental appropriations as appropriate.