There is no logical way to explain why Mexican children who enter the United States illegally are treated differently than children from other countries other than this: In 2008, it was inconvenient to offer Mexican kids the same benefits that are afforded to others. There were simply too many of them to accommodate.
Rep. Steve King, R-Iowa, who is famous for his hard-line stance on immigration, said he barely paid attention when the trafficking law was whiffed through the House on "unanimous consent" — meaning there was hardly anyone on the House floor when the gavel sounded, and there was almost no debate. Of the Mexican-Central American distinction, he said, "I don't know if there was a rationale."
King's memory is echoed by several other lawmakers and advocates who said the law's passage didn't make much of a ripple in their lives.
Sen. Dianne Feinstein, D-Calif., who authored parts of the bill, told National Journal that its original purpose was to give legal protections to abused or abandoned foreign children in the United States "so they could apply for asylum."
Before 2002, alien children's cases were treated as immigration cases and not refugee cases. Feinstein believed that was inappropriate for cases like that of Elian Gonzalez, whose mother drowned attempting to cross the ocean from Cuba, or Chinese teens who were brought into the country in shipping containers. "They were most likely asylees," she said.
She helped author the 2002 law that placed those types of cases into the refugee system. The exclusion of kids from "contiguous countries"(Canada and Mexico) may have been based on a belief that their cases more closely resembled immigration claims. But even Feinstein says she can't say for sure that anyone articulated that as a reason.
Feinstein's explanation suggests that Republicans and the Obama administration may be right in stating that the Central American children now in southern Texas don't fit the description of the kids that the human-trafficking law protects. About half of them won't qualify for asylum, according to Department of Homeland Security officials. If the law was intended to give an asylum process to people who had a high likelihood of it being granted, that population might not fit the bill.
But that still doesn't answer the question of why unaccompanied Mexican children have almost no chance to seek asylum under the law. Researchers at First Focus, a children's advocacy group, are digging through the congressional record to determine why it treats unaccompanied alien children from Mexico so dramatically differently than the kids from other countries. They haven't found an answer.
"They couldn't find a policy reason for the disparate treatment of kids from Mexico," said First Focus spokesman Ed Walz. The researchers have also plumbed the memories of refugee and immigration-policy experts who were familiar with the trafficking law, but to no avail.
The law requires unaccompanied Mexican children to be sent back to their home countries after border patrol agents screen them to determine whether they are in danger at home or are victims of "severe" trafficking. In absurd legislative-ese, the law also requires them to determine if the child "is able to make an independent decision to withdraw the child's application for admission to the United States."
In other words, can they decide on their own to turn around and go back home after making a long, scary journey by themselves? If the border patrol agent thinks the answer is yes, off they go.
"How do you determine that? I think most people would argue that no child should make that decision," said Wendy Cervantes, vice president of immigration rights at First Focus. "Most screenings happen within 12 hours. It's a uniformed officer. There are a lot of concerns that Mexican kids have been falling through the cracks."
Yet the same law offers protections for children from "non-contiguous countries" (right now, that means Central America) to ensure that they do not fall through the cracks. They must be turned over to trained child welfare authorities, reunited with any family they have here (on the taxpayers' dime), and have an immigration hearing before they can be sent back. That can take years.
Rep. Luis Gutierrez, D-Ill., said the 2008 law has perversely weakened its own protections against human trafficking because of the disparity. "We thought all children should be treated the same," he said. "It was a debate that we lost."
The statistics on unaccompanied alien children provide another explanation for the distinction, although it's a lame one. In 2009, 83 percent of unaccompanied child illegal entrants were Mexican. There were 16,000 of them. It wasn't logistically possible to give them all the protections that were afforded the roughly 3,000 other kids who crossed the border on their own.
This year, only 22 percent of the unaccompanied alien minors are Mexican. Their numbers have dropped from five years ago, from about 16,000 to 12,000. The ones who are still coming are processed in a few days. They generally accept the border patrol's offer of "voluntary removal" by agreeing not to ask for asylum and getting on a bus back across the border. It's not clear they understand what they're doing, but the system is efficient.
"They offer it because otherwise the system would be overwhelmed," said Jerry Kammer, a senior research fellow at the Center for Immigration Studies, a group that advocates for limited immigration.
If the border situation in 2008 looked like it does now, the law might not treat Central American children so generously, simply because the country doesn't have the resources to help them. Politicians now have to decide where to draw the line, perhaps the most difficult thing they could be asked to do because it involves human beings — children, no less.
"This is a competition between two different values. One is due process and the other is sanity at the border," Kammer said. "Those two things can't go together with this magnitude [of entrants]."
Illegal border crossings of children from Central America started skyrocketing in 2012, when 10,000 were apprehended. In 2013, it was well over 20,000. This year, we are at 44,000 and counting.
Feinstein opposes changing the 2008 trafficking law to treat Central American children the way Mexican children are now treated, as some lawmakers have suggested. But she argues that the law doesn't need to be changed to give Homeland Security Secretary Jeh Johnson the option to keep those kids within the immigration system, as Mexican children are. The law says that DHS is not required to transfer unaccompanied alien children to the Department of Health and Human Services under "exceptional circumstances" (a 400 percent increase in Central American border crossings probably qualifies).
It's not clear, though, whether those "exceptional circumstances" nullify the law's other procedures for unaccompanied minors. Feinstein is toying with legislation that would clarify what DHS can and can't do with Central American unaccompanied minors to allow faster processing, but she is not sure she will introduce it, fearing that her intent will be misconstrued.