Why We Don’t Immediately Send the Border Kids Back

A 2008 law is one big factor in the child-migrant crisis. One of the architects of the measure explains why it was needed.

A child on the Mexican side of the U.S.-Mexico border fence looks into Arizona during a special 'Mass on the Border' on April 1, 2014 in Nogales, Arizona.
John Moore AFP/Getty
Brian Resnick
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Brian Resnick
July 8, 2014, 7:03 p.m.

Rep. Mike Ro­gers had an idea for how to deal with the 90,000 un­ac­com­pan­ied minors ex­pec­ted to cross the U.S. bor­der this year. “Why aren’t we put­ting them on a bus like we nor­mally do and send­ing them back down to Guatem­ala?” he said to Home­land Se­cur­ity Sec­ret­ary Jeh John­son last month at a hear­ing on the child-mi­grant crisis lap­ping at our bor­der.

“The law that was cre­ated in 2008 re­quires that we turn these kids over—if they are un­ac­com­pan­ied—to the De­part­ment of Health and Hu­man Ser­vices with­in 72 hours gen­er­ally,” John­son replied. “So that’s what we do.”

Ro­gers was part of that very 110th Con­gress that passed the Wil­li­am Wil­ber­force Traf­fick­ing Vic­tims Pro­tec­tion Reau­thor­iz­a­tion Act in 2008 by un­an­im­ous con­sent, no less. The act did many things to com­bat hu­man traf­fick­ing world­wide—in­clud­ing provid­ing as­sist­ance to for­eign gov­ern­ments to com­bat ab­use and in­creas­ing pen­al­ties for traf­fick­ing crimes. A small por­tion of the bill con­cerned ad­ded pro­tec­tions for un­ac­com­pan­ied chil­dren cross­ing the U.S. bor­der. Spe­cific­ally, kids from non­con­tigu­ous coun­tries would be trans­ferred to the Health and Hu­man Ser­vices De­part­ment for care and pro­cessing. HHS would then be au­thor­ized to ap­point ad­voc­ates for the chil­dren and could work to unite the kids with fam­il­ies or place them in foster care.

“This bill is ne­ces­sary,” Sen. Di­anne Fein­stein said on the Sen­ate floor in 2008, “be­cause every year, more than 7,000 un­doc­u­mented and un­ac­com­pan­ied chil­dren are ap­pre­hen­ded in the United States or at our bor­ders.” But the law didn’t fore­see the in­flux of 90,000 of those chil­dren. And a sys­tem that was de­signed to be in­ten­tion­ally slower is now caus­ing a bot­tle­neck.

“We wer­en’t ne­ces­sar­ily giv­ing new im­mig­ra­tion status to any­one,” Dav­id Ab­ramow­itz, former chief coun­sel for the House For­eign Af­fairs Com­mit­tee who helped craft the le­gis­la­tion, says now. “We were just try­ing to provide mech­an­isms to pro­tect chil­dren to en­sure they were handled prop­erly when they were in the United States.”

Be­fore 2008, DHS had handled un­ac­com­pan­ied minors cross­ing the bor­der. But “there was a be­lief by the ad­voc­ates that these kids were handled in a very sum­mary fash­ion,” Ab­ramow­itz says. “Be­cause they were chil­dren—and in many cases very un­aware of what was hap­pen­ing to them—they didn’t have a way of ask­ing for re­lief that might ac­tu­ally have been avail­able to them un­der ex­ist­ing law in the United States…. DHS was not provid­ing the kind of sup­port or coun­cil that would al­low them to ad­voc­ate for them­selves.”

The sys­tem was thus slowed down, so the minors wouldn’t be sent im­me­di­ately back in­to dan­ger­ous situ­ations. It was out of pre­cau­tion. “We knew that not all these kids were traf­ficked,” Ab­ramow­itz says. “We wanted to pre­vent them from be­ing traf­ficked once they got here and pro­tect them from ex­ploit­a­tion.”

In a re­cent in­ter­view with the Los Angeles Times, former Rep. Howard Ber­man, the spon­sor of that 2008 meas­ure, said he and the oth­er au­thors of the law didn’t fore­see the cur­rent situ­ation. “Ob­vi­ously this par­tic­u­lar res­ult was not an­ti­cip­ated,” Ber­man said.

“I think the sys­tem was built with this six-, sev­en-, eight-thou­sand num­ber in mind,” Ab­ramow­itz says. “Re­mem­ber, this bill went through a bunch of ups and down but at the end of the day passed by un­an­im­ous con­sent in the House of Rep­res­ent­at­ives, which is very un­usu­al for this ma­jor piece of le­gis­la­tion. And passed by un­an­im­ous con­sent by the Sen­ate all with­in a 24-hour peri­od. So there was a lot of con­sensus that this was the right ap­proach. Would that be true if we were fa­cing this in­creas­ing wave, I don’t know, but maybe this is­sue would have been looked at dif­fer­ently.”

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