Obama’s Plan to Deal With Unaccompanied Minors Is Aggravating Immigration Advocates

A proposal to change the law to allow for “voluntary removal” of undocumented children is not going over well with everyone.

Secretary of Homeland Security Jeh Johnson testifies at a Senate Appropriations Committee hearing on Capitol Hill in Washington, DC, July 10, 2014. 
National Journal
Fawn Johnson
July 11, 2014, 1 a.m.

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.