Lawmakers think speeding up deportations for Central American children who cross the border illegally without an adult will help stanch the flow that has brought more than 40,000 of them here since last October.
Southern California Republican Congressmen Duncan Hunter, Darrell Issa and Ken Calvert recently introduced a bill that would allow the government to do that. (Other legislators are planning similar legislation.)
Under current law, the U.S. can deport Mexican children who crossed the border illegally much faster than children who are from countries that don’t share a border with us.
In a statement, Issa said: “By promptly returning them home to their loved ones it sends a clear message that will discourage other children from making this dangerous trip.”
But some experts have doubts.
“They’ll come back,” Ev Meade, director of the University of San Diego’s Trans-Border Institute, said.
“If they know they face a more immediate deportation from the United States, when they come back they’ll use a more expensive smuggler, take a more dangerous route and they’ll actually try and evade law enforcement. We could take a crisis and make it a whole lot worse,” Meade said.
NPR’s Carrie Kahn recently interviewed 12 Guatemalan children as they disembarked from a flight full of deportees from the U.S. All of them told her they planned to try again.
In the Rio Grande Valley, Border Patrol agents report that migrant children are seeking them out once they cross into the U.S. in order to turn themselves in.
Creating a cat and mouse scenario involving armed border agents, unscrupulous smugglers and young children could be deadly — especially when the most remote routes are the most unforgiving.
“Particularly in the summertime, [this] can mean kids dying in the desert,” Meade said. “And it puts a lot more stress on Border Patrol agents if they’re actually having to chase down people who are trying to evade them.”
Here’s the full interview with Meade (edited and condensed for clarity):
Issa and other members of Congress want to amend the Trafficking Victims Protection Reauthorization Act of 2008. What exactly does that law say about immigrant children travelling alone who cross the border illegally?
It said that unaccompanied minors from non-contiguous countries (countries other than Mexico and Canada) could only be removed or deported by an order of an immigration judge. What happens to many unaccompanied Mexican children is that they fill out a standard questionnaire and are interviewed by a Border Patrol agent or at the port of entry by a CBP (Customs and Border Protection) officer. If the officer determines that they don’t likely have a right to stay in the U.S., they are immediately removed from the country without seeing a judge in a process called voluntary departure.
The other kids are put in the custody of the Office of Refugee Resettlement, which is part of the Department of Health and Human Services, and their immigration proceedings go on like any other removal proceedings for anyone in the United States. When you have an immigration system like we do now, with a backlog of over 360,000 cases, that means that their cases take a really long time before they are ever adjudicated.
The TVPRA (Trafficking Victims Protection Reauthoritzation Act) of 2008 also simplified the process of applying for Special Immigrant Juvenile Status — a form of relief available to kids who’ve been abused, neglected or abandoned.
How is the law relevant to this current wave of Central American children crossing the border illegally without adults?
I would say that, while the legislators didn’t anticipate the present crisis, the forms of violence that kids are fleeing, particularly on their journey through Mexico, fit the international definitions of trafficking in persons, and thus the kinds of protections afforded by the TVPRA are entirely appropriate and shouldn’t be gutted.
Think about the San Fernando massacre in 2010, where criminals kidnapped and executed 72 Central American migrants passing through Tamaulipas. The sole survivor, and the person who alerted the authorities, was an unaccompanied teenager from Ecuador.
And these protections under the TVPRA don’t apply to Mexican kids?
Yeah, well, it’s a tricky question. They don’t have to apply. In that initial screening with law enforcement on the border, if law enforcement thinks, for example, that a child from Mexico is a victim of trafficking or that they may face persecution in their own country, or have a possible asylum case, they can enter the federal unaccompanied minor program and be put into our custody. And if you look at the program’s website, you will see that they do have a small percentage of Mexican children within their population.
It’s just that the vast majority of Mexican kids are immediately returned to Mexico.
So why was the law changed in 2008 to require Central American and other non-Mexican kids to appear before an immigration judge?
The change was made because of a bunch of concerns that children who might have been victims of serious crimes were removed from the U.S. without any serious scrutiny of their cases. I think that some of this is, in part, due to law enforcement’s recognition that it was really hard in an initial screening to make that determination.
Some of it was anecdotal evidence from immigration lawyers who ended up representing someone’s case pro-bono who didn’t really show all the signs of being a trafficking victim or being a crime victim, or being abused, neglected and abandoned, or any of the other avenues for relief they have under U.S. law. But once the lawyer built a rapport and got to know a child, the stories kind of came tumbling out.
And not only were most of them not represented by counsel, but they didn’t have their parents or family members to represent them, either. They’re basically standing alone in front of immigration officials. In a case like that, everyone thought it was better — much, much better — and provided much better protection for children to have to get a removal order from an immigration judge in the United States.
What do you think the consequences would be of putting Central American kids in the same category as Mexican kids, and looking to deport them immediately?
Well, I think what would happen is that border agents might end up removing a bunch of kids who might actually, under current U.S. law, have a pretty good claim to remain here. I don’t want to prejudge their screenings, because it may be that they try to put in other procedural requirements that slow the process down a little bit. But I think that you can assume that there would be people who have valid asylum claims, who might be victims of trafficking or violent crime, and might be abused, neglected, and abandoned, who are removed without that ever coming out.
What message do you think sending Central American kids back more quickly will send to others in those countries?
This is the key point, I think. The logic of the policy change is deterrence. The idea is that once people in Central America see a few planeloads of kids coming back, the word will get around that they won’t be welcomed in the United States, and in fact, be returned more quickly. That’s the operating principle that the president has laid down and most — even his critics — in Congress are on the same page.
The problem is that everything we know from the migration phenomenon, and everything we know about kids who come from Mexico and Central America is that this won’t work.
Another thing, I think, is that we can’t just push this off on Mexico and the countries in the region and tell them to harshen up their immigration enforcement. They’ve already done that. For the past 15 years we’ve given money, training, support, and encouraged all the countries in the region to reinforce their borders and pass more restrictive immigration laws.
For example, on Mexico’s southern border, starting in 2001, they locked down some of the main transit routes. And what happened? People started crossing in more remote areas; were more subject to violent criminals; the prices that smugglers charged went up; trafficking and abuse of children went up in those areas; corruption by immigration officials, unfortunately, went up; and it just made the whole journey a whole lot more dangerous.
The other thing is, if, we’ve actually had a policy of deterrence in Central America for about 15 years now and it obviously hasn’t worked. So, I think we seriously need to question what we are after with a policy of deterrence.
What has been done in those 15 years to try and deter Central Americans from coming to the U.S. illegally, can you give me an example?
The U.S., Mexico, Guatemala and El Salvador have participated in a bunch of joint operations that included public information campaigns telling people the danger of the crossing, the kinds of abuses that smugglers commit against them. But people have real fear and knowledge that a lot of people from their communities who have headed to the United States have been robbed, kidnapped, held for ransom, raped, and in some cases disappeared or been killed.
Measure a public service announcement talking about that stuff to the real experience that people already have knowing that that happens.
People already know of the risks and yet they're willing to come. We can't talk about these things in a vacuum as if what's happened in the last three months has no history to it.
If you were in Congress, what would you do to resolve the crisis?
We need more immigration judges so we can reduce the general backlog but also deal with the [children’s] cases more quickly. We also need more asylum officers and more legal representation for these children. And it probably should be court-appointed counsel or some kind of public-private partnership. If you look at what that costs compared to the general cost of border enforcement, it's not very much.
We need to make sure every kid has competent counsel. Why? And wouldn't that just encourage more people to come? Well, what I would say to that is, first, if you have competent counsel, it discourages fraud. Immigration cases are really hard to win. The evidentiary standard is high, and the fraudulent cases just won't wash out.
Second, it discourages absenteeism. You hear all these fear that kids are going to get these court dates years in advance and they're never going to show up. Well, if you talk to immigration attorneys, and there's a good study by the Vera Institute of Justice that proves this, if people are represented by their counsel, they are far, far more likely to show up at their hearings.
Third, it can help to reduce the backlog, because if you have competent counsel screen the kids beforehand, a significant proportion of them could be taken out of the immigration court system altogether because, in some cases, they're going to go into the asylum system and ask for asylum, and in other cases, they've been abused, neglected or abandoned and they're going to go to a family court, and in other cases, counsel will look at the case and say, ‘look, there's really no good avenue for legal relief, you should probably go back to your home country. We should make an agreement to do that’ and it doesn't need to go through the immigration court system.
The last thing is that adjudicating these cases could give us first-hand evidence of why people are coming and what's going on in their home countries that we can then use to inform our policy-makers.
But we already know a lot of the reasons they're coming, don't we?
We tend to know it in an oversimplified fashion. If we're going to make a policy response that's tailored to indigenous communities that are in conflict with the Guatemalan government, that's going to be a different policy response than, say, in San Salvador, where what we're dealing with is forced recruitment into criminal gangs, or governments targeting people living in neighborhoods run by gangs on the presumption that they're gang members. That's a totally different phenomenon and it requires a different policy response.
