Blog

Media reports over the weekend indicate that the Obama administration is reacting in the worst way possible to the influx of unaccompanied minors along the Southwest Border.  As the prospect of comprehensive immigration reform dies and leading House GOP members call for removal of Deferred Action for Childhood Arrivals (DACA) grantees, the administration, once again, seeks to placate the most anti-immigrant portions of the population.  Such a move is consistent with the administration’s long-held, and far too long stuck to, policy of ratcheting up enforcement to appeal to the nativists in the House GOP, hoping that this show of good faith would get them to support CIR.  Well, that strategy has not worked ever, yet the administration has chosen to stick with it, even though it means causing untold hardship to children fleeing horrific conditions in their home countries.

The Southwest border has once again become a focal point for the immigration debate.  Since October, over 52,000 unaccompanied minors have been apprehended by U.S. Customs and Border Protection.  Most of these children are from El Salvador, Honduras and Guatemala, where gang violence, extreme poverty and broken homes force kids to make the very dangerous journey to the U.S.  Many of these children have a parent in the U.S., who may or may not be here legally.  And many of these children may have learned that, if you make it to the U.S., you have a chance of staying.  But what is clear is that it is conditions in their home countries that are driving these kids out of their homes and across deserts and rivers.  The know-nothing chorus on FOX News has bleated that the arrival of so many children means that the border is not secure, that the administration has encouraged these children to come to the U.S., and that these children represent a danger to America.  Meanwhile, CBP is overwhelmed with these children.  However, rather than following the law which requires a careful and humane screening process, CBP has embarked on tactics to convince these children to turn back around.  A recent lawsuit against CBP by the ACLU asserts that children are being held in horrific conditions, pressured to go home, and subjected to casual violence.

So, after a month of hesitation and half-measures, the administration comes up with a plan to increase CBP’s authority to expedite the removal of these children.  U.S. law requires CBP to place a child encountered at the border with the Department of Health and Human Services (HHS).  That child will still be placed into removal proceedings, where a judge will determine whether the child has any legal right to remain in the U.S.  Children in HHS custody are often put into the custody of a relative.  Those without relatives are kept in HHS custody in, generally, better conditions than adults in DHS custody.  Many of these children qualify for Special Immigrant Juvenile visas, which are available to abused, abandoned or neglected children for whom a state court has found that the best interests of the child require her remaining in the U.S.  Others may qualify for asylum.  A recent study from the United Nations High Commission on Refugees (UNHCR) estimates that a significant portion of these children meet the legal definition of “refugee,” the starting point for a grant of asylum.  There are systems in place and organizations dedicated to securing these benefits for children.  For example, I serve on the Board of the Capital Area Immigrant Rights Coalition (CAIR Coalition), which provides legal services to unaccompanied minors in the custody of HHS.  Part of CAIR’s funding comes from U.S. government grants.  An increase in those grants would seem appropriate at this time.

The administration’s proposal is a disaster.  It reminds me of the old saying, “If all you have is a hammer, everything looks like a nail.”  In addition to being cruel and heartless, it displays an amazing lack of imagination.  The administration’s response is to make enforcement easier, give children less due process, and increase the authority of an agency, CBP, that has shown time and time again that it can not be trusted with the authority it currently has.  What the administration seeks to do is to treat children from El Salvador, Honduras and Guatemala as it treats Mexican children.  Here is what the law allows CBP to do with Mexican children:

(A) DETERMINATIONS- Any unaccompanied alien child who is a national or habitual resident of a country that is contiguous with the United States shall be treated in accordance with subparagraph (B), if the Secretary of Homeland Security determines, on a case-by-case basis, that–

(i) such child has not been a victim of a severe form of trafficking in persons, and there is no credible evidence that such child is at risk of being trafficked upon return to the child’s country of nationality or of last habitual residence;

(ii) such child does not have a fear of returning to the child’s country of nationality or of last habitual residence owing to a credible fear of persecution; and

(iii) the child is able to make an independent decision to withdraw the child’s application for admission to the United States.

(B) RETURN- An immigration officer who finds an unaccompanied alien child described in subparagraph (A) at a land border or port of entry of the United States and determines that such child is inadmissible under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) may–

(i) permit such child to withdraw the child’s application for admission pursuant to section 235(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1225(a)(4)); and

(ii) return such child to the child’s country of nationality or country of last habitual residence.

Setting aside for a moment that this is grossly unfair to Mexican children, the administration should be pushing for more protection of all children and not less.  The administration is asking for $2 billion to help CBP detain and deport these kids.  This makes the CBP officer at the time of apprehension, the police, judge, jury and executioner.  The administration’s plan does not appear to be asking for additional resources to provide hearings before immigration judges, for interpreters and lawyers for children or to assist the non-governmental organizations that work with the children.  Rather the administration seeks funds to make it easier for CBP to remove kids who may qualify for relief and who may likely face danger in their home country.  Bob Goodlatte and Steve King could not have come up with a more cruel policy.

Another option that the White House apparently never considered is the fact that many of these unaccompanied minors have a parent in the U.S. with temporary protected status (TPS), a status which allows an individual from certain designated countries to remain and work in the U.S. but without any opportunity to bring family or seek residence.  Salvadorans who entered the U.S. before 2001 may have TPS and Guatemalans who entered before 1999 might as well.  Why not ask Congress to amend the TPS statute to allow for admission of children of TPS holders?  Why not ask Congress to covert some of these TPS beneficiaries into residents after over a decade of living here legally? Did anyone even consider these ideas?  Seems unlikely given that the administration’s response is to crack down (hammer meet nail) without any concession to due process or humanity.

Perhaps some of these children are the beneficiaries of petitions and are waiting for a visa.  Conditions in their home country deteriorated to the point that they decided to flee before the decade or so was up before a visa could be granted.  In the past Congress passed laws to grant temporary visas to people waiting in such queues.  But, alas, that was a different Congress and a bolder administration.

Finally, the USCIS Asylum Division has, historically, done a very good job dealing with asylum claims by children.  There are serious protocols that asylum officers must follow in dealing with juveniles and assessing their asylum claims in a generous light seems appropriate.  Yet, instead of providing the Asylum Division with the resources they need to address this humanitarian crisis, more and more funds are being thrown at CBP and expedited removal.  These children have navigated hundreds of miles and faced smugglers, deserts, trains, deserts, rivers and assorted criminals.  The least we can do is listen to their story as to why they did that.

Many have recognized for several months that the know-nothing caucus in the GOP has prevented the House from taking up immigration reform.  The hope, under such circumstances, is that the President would take decisive administrative action to ameliorate the human damage of our dreadful immigration laws.  The administration’s first effort to deal with immigration after CIR has been declared officially dead by the papers of consensus, the Washington Post and the New York Times, fails miserably and mocks the faith that many of us put in this President to do the right thing.