There’s No Explanation for the Central American Trafficking Law ‘Loophole’

The distinction between Mexican and Central American unaccompanied minors is rooted in convenience.

Immigrants who have been caught crossing the border illegally are housed inside the McAllen Border Patrol Station in McAllen, Texas where they are processed on July 15, 2014 in McAllen, Texas.
National Journal
Fawn Johnson
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Fawn Johnson
July 16, 2014, 7:33 p.m.

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.

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