Our country is facing one of its greatest moral challenges in years: how will we treat the migrant children fleeing violence in Central America and seeking refuge within our borders? I know how I want us to treat them. Fairly, humanely, and within the parameters of the anti-trafficking law passed by bipartisan consensus in 2008 and signed by then-President George W. Bush.
Under the TVPRA of 2008, a child apprehended by Customs and Border Protection (CBP) undergoes initial processing and screening to see if he or she is an unaccompanied child (UAC) from a non-contiguous country, such as El Salvador, Honduras, or Guatemala. CBP must notify Immigration and Customs Enforcement and the Office of Refugee Resettlement (ORR) and transfer the child within 72 hours of apprehension to ORR custody. ORR places the child in the least restrictive setting available that is in the best interest of the child, and then completes a screening to determine whether: (1) the child has been a victim of trafficking; (2) there is credible evidence that the child is at risk if returned; and (3) the child has a possible claim to asylum. The child is not automatically permitted to stay in the United States. Rather, he or she is placed in removal proceedings before an immigration judge pursuant to section 240 of the Immigration and Nationality Act. While proceedings are pending, the child is released to the custody of a family member or to an ORR shelter or foster home. If the child is not eligible for any relief, he or she is ordered removed from the United States and is repatriated.
But this process, which allows for proper screening for trafficking and persecution, as well as fair and full consideration of their legal claims available under U.S. law, and which takes the best interest of the child into consideration, is not what others are advocating. Instead, we have an administration that is prejudging these children’s eligibility for relief and proposing streamlined procedures that would prejudice real claims for protection. Instead, we have Congress focusing its efforts on undermining the legal protections already in existence under U.S. law for these children and curtailing due process. Recently, the Texas-duo of Senator Cornyn (R-TX) and Representative Cuellar (D-TX) have introduced their HUMANE Act, and even more troubling, Representatives Goodlatte (R-VA) and Chaffetz (R-UT) have introduced the Asylum Reform and Border Protection Act, a bill that shows zero understanding of how difficult it is under our current laws to seek and be granted asylum in the United States.
The Asylum Reform and Border Protection Act would eviscerate our already stringent asylum process, strip away the protections that do exist under current law to offer these children a fair chance at due process, and shut out bona fide refugees, returning them to situations of persecution and torture in violation of our domestic and international legal obligations. This legislation would place these children’s fate in the hands of CBP officers, a law enforcement branch with a terrible track record of unaccountability and no transparency, abuse with impunity of those apprehended, and coercion of bona fide refugees to accept removal with no process in lieu of protection. This legislation would subject these children to streamlined procedures, resulting in the removal of children after cursory screenings that have already proven entirely inadequate in identifying genuine refugee claims and the return of these children to dangerous and deadly situations.
- All children caught at the border would be subject to expedited removal, a process allowing removal without a hearing before an immigration judge if a child has no credible fear of persecution or torture, and which triggers an automatic five-year bar on legal reentry.
- The screening standard of review for children’s asylum claims would be raised, requiring a child to convince an asylum officer that his or her claim was “more probable than not” in order to even appear before a judge.
- Under the proposed new definition of “unaccompanied,” all children would be detained until their asylum applications were adjudicated.
- The arbitrary one-year deadline requiring adults to file their asylum applications within one year of their entry to the United States would be extended to children.
- Children apprehended at the border could be immediately removed without any asylum screening to a “safe third party country,” such as Mexico, without any agreement from that third party country, as required under current law.
Presenting these changes as “fair” and “humane” is simply offensive. These changes are anything but fair, anything but humane. Using children who have suffered horrific violence and abuse in their home countries, survived a dangerous journey of over 1,000 miles, and arrived in search of protection as political pawns to push partisan agendas is heartless and un-American. We need real leadership, not leaders who decide that treating migrant children from Central America humanely is too difficult, and not leaders who prefer politicking and political posturing to problem solving and standing up for our country’s values.
Our leaders should be working together to secure and implement the coordination and resources necessary to address this major regional humanitarian crisis and ensure due process for children who have braved a harrowing journey to seek safety and protection from violence, persecution, torture, and trafficking. I encourage all AILA members, stakeholders, and constituents to call their Senators and Representatives and implore them not to support the HUMANE Act or the Asylum Reform and Border Protection Act. If this legislation is passed, our country would be turning its back on these children and on our nation’s values.
[This blog post was originally written by Dree Collopy for the AILA Leadership Blog.]