An obscure human-trafficking law that passed Congress under the Bush administration with no objection is likely to be changed, much to the chagrin of refugee and immigration advocates.
The Obama administration is seeking the ability to offer "voluntary removal" of undocumented children from Central America back to their home countries, which the trafficking law now prohibits. Republicans also are demanding the change as one of the conditions for approving $3.7 billion in emergency funding to deal with the surge of children on the border.
This idea has raised alarm bells among immigration and refugee advocates, who say voluntary removal is often coerced from vulnerable children. They believe the border patrol is ill-equipped to handle the sometimes difficult interviews with kids who have taken a long and difficult journey fleeing violence at home.
Some Democrats agree with the advocates, and the controversy could set up a legislative battle that could delay the funding request until September. That would put the Homeland Security Department into a funding crisis. DHS Secretary Jeh Johnson told the Senate Appropriations Committee Thursday that border funding would run out in August.
The White House plans to send a separate request to Congress to allow DHS to offer voluntary removal to all unaccompanied children who are picked up at the border, Johnson said. Right now, the border patrol can offer that option only to children who cross the border from Mexico. The officials offer those children the opportunity to go home safely and be delivered into the custody of Mexican child-welfare officials without any kind of deportation punishment. Advocates say the interviews are confusing and intimidating for a child.
About three-quarters of the children crossing the border in the Rio Grande Valley in the recent surge are from El Salvador, Guatemala, and Honduras. Most of the rest of these unaccompanied minors are from Mexico, and those kids are sent back to Mexican child-welfare officials relatively quickly.
"What we have in mind is treating unaccompanied minor children from the three Central American countries as being from contiguous countries, i.e., Mexico," Johnson said. "We offer a child the ability to accept a voluntary return, and a lot of them actually do accept a voluntary return."
The American Immigration Lawyers Association vehemently disagrees. The group says the trafficking law should actually be changed in the opposite direction. The group says that the Mexican "loophole" should be closed such that all unaccompanied children who are apprehended at the border are placed into the custody of the Health and Human Services Department. "There is no valid reason for treating vulnerable unaccompanied children differently based on their country of origin. All children should receive careful and robust screening and protection to ensure their safety and well-being," the group said in statement sent to Congress.
Even before Johnson's statement, civil-rights advocates were bracing for the possibility that the trafficking law could change. Privately, some of them said that their concerns about weakening the law led to Obama keeping the change out of his $3.7 billion emergency request for additional border funding.
But once the proposal landed on Capitol Hill, it became clear almost immediately that the money would not be forthcoming without a change to the trafficking law. Republicans said they didn't understand why the president would talk about quick repatriation of Central American alien minors and then not follow through in his funding request. The notable absence of the provision provoked some of them to question Obama's motives, positing that the emergency request is a political move.
"The money is going to medical treatment and bus trips and plane trips to where they want to go," said Rep. Darrell Issa, R-Calif.
Indeed, the current trafficking law requires that HHS take care of the undocumented children who cross the border if they are not from Mexico. (The exception in the trafficking law also applies to Canada, but few people are apprehended on the northern border.) The children are provided with medical care, mental health screenings, and education. They are also given some legal services, although not actual representation.
Issa says that amounts to free babysitting for people who crossed the border illegally. It's hard to argue with him. The testimony of HHS officials this week on Capitol Hill describing the care of the children in their care can almost be read like an advertisement for crossing the border. "The children in our shelters receive physical, mental, dental, education, and physical activities," said Mark Greenberg, acting assistant secretary for children and families at HHS at a Wednesday hearing of the Senate Homeland Security Committee.
Once they are healthy, HHS attempts to find parents or guardians inside the U.S. where they can place the children. About half of the unaccompanied minors in HHS's care are released to parents already inside the country, per HHS Secretary Sylvia Burwell. Many of those parents are undocumented, although HHS does not ask for their immigration status at the time they turn over the children, so it isn't clear how many don't have papers.
At Thursday's hearing, several Republicans pressed administration officials about the 2008 law. "[Obama] said last Monday that he had some changes he wanted to make, and we need to know what those are," said Sen. Lamar Alexander, R-Tenn.
But the trafficking law is sacrosanct among many civil-rights advocates. It is the result of decades of work with several veteran elected officials still in Congress, including Sen. Dianne Feinstein, D-Calif. She told Johnson at Thursday's hearing that she proposed the special conditions for unaccompanied minors in the trafficking law after witnessing a teenage girl in chains and tears before an immigration attorney. The girl had been transported in a cargo container from China. Her parents had died along the way.