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Policy Implications of the Crisis at the Southwest Border

December 16, 2014
What has been termed an “urgent humanitarian crisis” by liberals and an “administration made disaster” by conservatives has sparked heated debate in Congress about immigration reform. The surge in unaccompanied alien children from the Northern Triangle of Central America—Honduras, Guatemala, and El Salvador—apprehended at the Southwest Border elicited serious concern from both sides of the isle this summer.

By Austin Morris, Social Policy & Practice ’14 

According to U.S. Customs and Border Protection (CBP), there has been a 61.7% increase in apprehensions of unaccompanied alien children over the prior year, with three full months still left in FY 2014. As illustrated below, between FY 2009 and FY 2013, most unaccompanied alien children hailed from Mexico rather than any of the Northern Triangle Countries in Central America. In fact, apprehensions of unaccompanied alien children from Mexico peaked just last year at 17,240.[ii]


Source: “Southwest Border Unaccompanied Alien Children.” U.S. Customs and Border Protection. Web. 01 Aug. 2014.

 As FY 2014 unfolds, this pattern has shifted. Rather than Mexico, the vast majority of these children are coming from Honduras, Guatemala, and El Salvador, respectively. Compared to Mexico’s 20.7% decrease from FY 2013-FY 2014, Honduras has the greatest percent increase (160.6%) of the Central American countries as demonstrated in the graph below. 

Source: “Southwest Border Unaccompanied Alien Children.” U.S. Customs and Border Protection. Web. 01 Aug. 2014.

This shift, or reversal, not only conjures up potentially serious push factors from these three particular countries but also raises the question of what, if anything is encouraging these children to flee their homes and relocate to the United States (pull factors)? In this context, push factors refer to what is incentivizing individuals to leave their home country and pull factors refer to what is pulling individuals to a particular country. For example, Honduras has the highest homicide rate in the world (90.4 per 100,000), which is almost double the country with the second highest homicide rate of 53.7 per 100,000.[iii] Clearly this is reason enough for anybody to want to flee, but since this has been the case in Honduras for quite some time, what are the other reasons pushing children to take this perilous 2,384 kilometer journey north to the United States?

Unsurprisingly, Congress is highly divided over the push-pull factors that drive this growing crisis. There are two very popular, yet disparate, factors dominating the conversation. Liberals in Congress are focusing on the push factors in these three Central American countries, whereas more conservative members are focusing on what they believe to be the pull factors contributing to the surge. For example, at the House Judiciary Hearing titled: An Administration Made Disaster: The South Texas Border Surge of Unaccompanied Alien Minors, the Committee Chair Rep. Bob Goodlatte (R-VA) pointed to a Rio Grande Valley (RGV) Sector Intelligence Report that indicated “when these individuals were asked why they made the journey to the United States, approximately 95% indicated that the main reason was to take advantage of the “new” U.S. “law” that grants a “free pass” or permit (referred to as “permisos”) being issued by the U.S. government to women traveling with minors and unaccompanied alien minors.” In other words, pointing the finger at the current Administrations immigration policies, labeled as “lax” by conservatives. In the same hearing, Rep. Luis Gutierrez (D-IL) pointed to push factors such as “fleeing drug cartels, crime, violence, murder, and rape” to explain the surge.[iv]

After attending a series of Congressional Hearings on this topic, it is clear to me that there is no simple fix to this crisis, and while both push-pull factors may describe the cause of this crisis, only serious law and policy solutions can help to solve it.

One of the key laws impacting the processing of unaccompanied alien children from Central America is the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008. The TVPRA dictates how we currently treat unaccompanied alien children who present themselves at our borders. The crucial issue in the TVPRA is the distinction of treatment between unaccompanied alien children who are from contiguous versus noncontiguous countries. Essentially, the TVPRA allows unaccompanied alien children from Mexico and Canada (contiguous countries) to partake in expedited and voluntary removal proceedings—freeing up federal government resources infinitely faster than the process for unaccompanied alien children from noncontiguous countries, such as Honduras, Guatemala and El Salvador, who are required by law to be transferred to the Office of Refugee Resettlement (ORR) within 72 hours.[v] From there, the children are placed in official removal proceedings and are typically temporarily released to a relative or sponsor while they await their day in court, which due to the lack of immigration judges, can take years. 

When the TVPRA was passed, the majority of unaccompanied alien children were originating from Mexico. Therefore, it was logical to allow expedited removal proceedings for the largest group. However, due to the recent shift and increase in children from noncontiguous countries, under current law, they do not have the option to voluntarily return to their home country. As a result of the serious backlog and lack of resources, it will be years before these children receive their day in court. While they are officially in removal proceedings, some on the right believe this is actually a “free pass” to stay in the United States indefinitely, and is being used in a misinformation campaign by human smugglers to encourage migration attempts into the United States. Without increased funding and additional immigration judges, the wait time for a day in court will remain years instead of months or weeks. 

Another important issue for Congress is the legal definition of an unaccompanied alien child. The term was first defined in the Homeland Security Act (HSA) of 2002:

“(2) the term “unaccompanied alien child” means a child who

(A) Has no lawful immigration status in the United States;

(B) Has not attained 18 years of age; and

(C) With respect to whom

(i) There is no parent of legal guardian in the United States; or

No parent or legal guardian in the United States is available to provide care and physical custody.”[vi]

Acting Assistant Secretary Mark Greenberg of Health and Human Services testified, “To date in fiscal year 2014, approximately 95 percent of children released were released to a parent, relative, or non-relative sponsor.”[vii] As stated above in the HSA definition, the majority of these children do not technically qualify as an unaccompanied alien child if they are being released to a parent in the United States. Even though there has been less attention paid to this issue than to amending the TVPRA, it would be wise to amend the definition to include children under the age of 18 who have made a treacherous journey to the United States without a parent. In my opinion, this should qualify as “unaccompanied.”

The push-pull factors and legal/policy implications behind the growing number of unaccompanied alien children will be far reaching. While treating children from contiguous and noncontiguous countries differently has certainly presented a new set of challenges for the federal government, I would caution against making hasty changes to the TVPRA as it was created to prevent children from becoming victims of human trafficking. Rather, I would like to see more efforts in increasing funding for additional immigration judges, allowing each child their day in court, so that we are certain not to return a child with a credible fear to abuse or death in their home country. Additionally, root causes of this surge need to be addressed by working closely with Honduras, Guatemala, and El Salvador as the Administration has been doing this summer. These issues are all addressed in President Obama’s $3.7 billion supplemental appropriation request. Lastly, I think it would be wise to amend the definition of “unaccompanied alien child” in the HSA to reflect the reality of these children’s unaccompanied journeys. 

Unfortunately, yet unsurprisingly, Congress went into the August recess without voting on President Obama’s supplemental funding request to help address various aspects of this crisis. I imagine that President Obama will exercise his executive authority and take as much action as he is legally able in regards to the humanitarian crisis while Congress is in recess, but I anticipate that the legal issues discussed will not be addressed as quickly.  

 


[i] Disclaimer: The views and conclusions of this paper solely reflects those of the author and not those of the Congressional Research Service, Library of Congress.

[ii] “Southwest Border Unaccompanied Alien Children.” U.S. Customs and Border Protection. Web. 01 Aug. 2014.

[iii] Alfred, Charlotte. “These 10 Countries Have The World’s Highest Murder Rates.” The Huffington Post. TheHuffingtonPost.com, 10 Apr. 2014. Web. <http://www.huffingtonpost.com/2014/04/10/worlds-highest-murder-rates_n_5125188.html>.

[iv] United States. Cong. House. Judiciary Committee. Hearing: An Administration Made Disaster: The South Texas Border Surge of Unaccompanied Alien Minors. 113 Cong. H. Rept., 25 June 2014. Web. <http://judiciary.house.gov/index.cfm/hearings?ID=8B6D7AE6-1B16-4A12-BA74-35952F0FCB97>.

[v] Chishti, Muzaffar, and Faye Hipsman. “Dramatic Surge in the Arrival of Unaccompanied Children Has Deep Roots and No Simple Solutions.” Migrationpolicy.org. Migration Policy Institute, 13 June 2014. Web. <http://www.migrationpolicy.org/article/dramatic-surge-arrival-unaccompanied-children-has-deep-roots-and-no-simple-solutions>.

[vi] H.R. 107–296, 107 Cong. (2002) (enacted). Print.

[vii] Greenberg, Mark. “Testimony from Mark Greenberg on Unaccompanied Children.” U.S. Department of Health and Human Services. N.p., 9 July 2014. Web. <http://www.acf.hhs.gov/programs/olab/resource/testimony-from-mark-greenberg-on-unaccompanied-children>.

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