HUMANE Act Dissected - Analysis of the Deportation-Only Response to the Child Migrant Crisis
The Cornyn/Cuellar bill is as heartless as it is inhumane, using the plight of vulnerable children as a shameless excuse to militarize the Rio Grande Valley and rollback laws designed to protect the victims of trafficking. Instead of putting forth actual solutions to the problem, this bill just continues the long-standing objective of people like Senator Cornyn to pursue harsher immigration enforcement policies, this time on the backs of children.
Here we offer our analysis of the bill in which we respond to claims by the bill's authors Senator John Cornyn and Representative Henry Cuellar. Please give us feedback on our analysis, or add your take on the bill in the comments section below. Email any corrections to firstname.lastname@example.org
Our thanks to Center for American Progress and Kids In Need of Defense (KIND) for their analyses of the bill, from which we've borrowed for our own.
Read our analysis after the jump.
Some General Points
In practice, this bill penalizes children for being children, subjecting them to a more complex and bizarre review process for protection claims than adults face, sacrificing truth for speed, and potentially sending children back to the criminals and abusers who drove them from their homes in the first place, to be assaulted, abused and killed. This is drive-by due process that provides less protection—to children no less—than your average traffic court.
The bill turns the idea of protecting children on its head by creating a confusing, complex and virtually unwinnable game of Chutes and Ladders—a series of screenings and hearings that children as young as toddlers must successfully navigate simply to be able to tell their full story to a judge. Instead of giving these children a way to express their fear of violence and trafficking, this bill virtually ensures that they will be sent back without meaningful review.
Locking up kids fleeing violence is not the answer. They're just kids. Alternatives to detention should always be the first recourse for caring for minors crossing our border. The Detention Watch Network is the authority on alternatives to detention and the policy recommendations of the network and their partners like Lutheran Immigration and Refugee Service should be heeded.
Also, this bill does not add additional resources that could help HHS or other child welfare groups that would care for the children while they wait for their cases to be heard.
Section 101. Changing the 2008 law to take screening for victims of trafficking away from qualified HHS child advocates and put it in the hands of DHS law enforcement officials.
What the authors say:
Current law allows unaccompanied alien children from Mexico and Canada who are apprehended crossing the border illegally to give consent to be swiftly returned to their home country. Before allowing these children to give such consent, DHS officials must make a determination that the child is old enough to give informed consent, is not a victim of human trafficking, and is not claiming asylum in the United States.
According to statistics from DHS and HHS, approximately 85% of unaccompanied alien children apprehended from these countries choose to be voluntarily returned to their home country without proceedings in immigration court.
This section would treat all unaccompanied alien children equally under the law—giving them the choice to be swiftly repatriated to their home countries at no cost to the child or their family.
For varying reasons, child victims are less likely than adults to recognize themselves as such. The Department of State explicitly takes this position in its 2008 report on human trafficking stating that, “victims should not be expected to identify themselves."
Most unaccompanied children do not understand their situation or rights. Lack of understanding due to the child’s natural cognitive and emotional limitations is compounded by the complexity, inconsistency, and unavailability of relevant information.
Putting these life-or-death decisions in the hands of DHS agents and putting the burden on children to recognize themselves as victims is a recipe for disaster and is exactly what the TVPRA of 2008 was created to address. The congressman should be expanding protections to Mexican and Canadian unaccompanied minors, not restricting it for all others.
Section 102. Accelerating immigration hearings and limiting access to legal representation
What the authors say:
Under current law, all unaccompanied alien children (no matter their country of origin) who cannot be voluntarily returned to their home country are: (1) issued a Notice To Appear in immigration court for removal proceedings by DHS; (2) transferred to HHS custody, where they are screened for human trafficking and other serious abuse; and (3) generally placed to live with a family member or sponsor in the United States while they await their immigration court
Unfortunately, the majority of these children fail to respond to their Notice To Appear in immigration court—failing to avail themselves of the full protection of the law and choosing to live in the shadows without legal authorization.
This section would require unaccompanied alien children who do not wish to be voluntarily returned to their home country to remain in HHS custody while they await an expedited immigration court hearing that must occur not more than 7 days after they are screened by child welfare officials.
At this immigration court hearing the unaccompanied alien child would be given the opportunity to be represented by an attorney before a judge, where they could state their legal claim to remain in the United States. The judge would be required to issue their order within 72 hours of this hearing.
If the child is unable to show that they are likely eligible for legal status or relief from removal under our immigration laws, the immigration judge would be required to order the child repatriated in their country of origin. HHS would be required to maintain protective custody of the child while they awaited return to their home country.
If the child is able to show that they are likely eligible for legal status in the United States or relief from removal, the immigration judge would be required to place them in further immigration court proceedings to continue pursuing their claim. While the child awaited these proceedings, they would be allowed to remain in the United States in the custody of a family member or HHS-approved sponsor.
If the child asserts a claim of asylum before the immigration judge, the child would be placed in asylum proceedings at United States Citizenship and Immigration Services (USCIS). If an asylum officer determines that the child is not eligible for legal status as an asylee, the officer would be required to order the child removed from the United States. The child would be required to be held in HHS protective custody throughout the entire duration of the asylum process to ensure their safety and presence at proceedings.
The child would not be allowed to leave the custody of the United States Government until the conclusion of their immigration court or asylum proceedings unless: (1) they are granted an order by an immigration judge finding that they are likely eligible for legal status in the United States; or (2) they are granted asylum status.
If—and only if—the kids pass the CBP screening do they get to see a judge. Even then, the judge has to do yet another screening just to see whether they have a legal claim.
A week is nowhere near enough time to navigate our complex legal system, especially for a child. There aren't enough immigration lawyers in the U.S. to represent all of these children in such a short time, making it essentially impossible for them to get the legal representation they need. If there were enough immigration lawyers available for so many cases, the bill does not provide any money for attorneys or child welfare specialists to ensure victims know their rights and have access to legal representation. Speeding up the process is only speeding them toward their deportation and in many cases their death.
All of this must take place within ten days of the child having presented herself to Border Patrol and asking for protection—barely enough time for the child to recover from her journey, let alone build up the trust necessary to tell an adult that she saw her family murdered or that she had been gang raped.
Examples of the damage this would cause
The Cornyn/Cuellar bill would not have helped Sara, a young Salvadoran who was 15 years old when a group of men kidnapped her and forced her to live with them. They abused her sexually and made her have sex with other men who paid them. When she was 17, she finally was able to escape and tried to come to the US. Sara was arrested by immigration while crossing the border. She was held in detention for about two months. She didn't see a judge or talk to legal aid, but she spoke to a social worker who ultimately identified her as a trafficking victim. Sara found protection because she wasn’t summarily deported. She was identified because of the protections Congress instituted in the 2008 TVPRA. Trafficked children do not self-identify and need individuals trained in child welfare and human trafficking to ask very specific child-centered questions.
There is not a single iota of protection in the Cornyn-Cuellar bill to help someone like Sara.
There is no money for HHS to care for Sara, no money for attorneys or child welfare specialists, no one to ensure that the people she encounters know and understand the horrors she faced.
There is no time—a mere ten days—for Sara to recover or build the trust she needs to tell her story.
And because there is no real mechanism in this bill to protect Sara, Cornyn/Cuellar would almost certainly send her home.
A tragic example of how expedited removal has gone very wrong is the case of Laura S., which Texas Rio Grande Legal Aid and South Texas Civil Rights Project are working on in South Texas.
Laura was a young mother who was long battered by her former boyfriend, who was working with the cartels in Mexico. She finally filed charges against him in the Texas courts, and obtained protective orders. He returned to Mexico, enraged and making it clear he would kill her as soon as he got the chance.
Border Patrol picked her up with three friends one evening in 2009 and sent her back across to Mexico before dawn, with no hearing and no lawyer. She was not eligible for expedited removal, as she had lived in Texas for years, and there were many ways she could have obtained relief from an immigration Judge. She repeatedly told the officers she would be killed within the week if they deported her and begged and wept all the way to the bridge. She was found dead in a burning car days later.
Title II – Border Militarization
A full two thirds of the bill have nothing to do with the child migrant crisis, instead focusing on border enforcement and militarization.
This is not a border security issue. The children and family units coming to the border are seeking out border agents. The amount of boots on the ground is irrelevant. Border security should be debated separately. Conflating the issue is an insult to our intelligence, an obvious nod to anti-immigrant nativists in the Republican voter base, and a hand out to corporate military contractors. For that reason, we do not include an analysis of the border security section of the bill.
With the exception of Section 205, which is particularly heinous because it essentially gives state governors the green light to use the National Guard for border enforcement and military style operations along the border, including operating of drones for surveillance and constructing checkpoints. This would raise the militarization of the border to a new level, deploying troops trained in military operations to our communities.
The real reason for two thirds of the bill being devoted to militarization of the border might be suggested by a glance at Cornyn and Cuellar's campaign finances. OpenSecrets.org reveals that Senator John Cornyn has received $97,200 from military contractor Lockheed Martin in 2014 alone. Cuellar has received $41,250 in campaign contributions from military contractors Boeing Co and Lockheed Martin since 2010. He received $38,750 from private prisons since 2010, with $15,500 from GEO Group this cycle alone. It is a shame that these leaders are attempting to exploit the child migrant crisis to give handouts to corporations that profit off our broken immigration system.
Then, buried under all that border militarization, there's a section that authorizes funds for assistance and reimbursement to state and local governments to deal with the humanitarian crisis on the Southern Border. It is a testament to the priorities of Cornyn and Cuellar that this section is not front and center or in place of all the border militarization.
In summary, there is nothing humane about this mistitled HUMANE Act. It is just the latest in the tired rhetoric of Republicans who will do anything they can to block immigration improvements—any kind of measures that might help people. In this case, the solution is not another round of enforcement-first spending; instead, we should be providing the immigration court and HHS with the resources they need to do their jobs.
Kids aren’t the problem here. Kids who are crossing the border and hoping that the U.S. might give them a life free from violence, assault, crushing poverty and death are not a problem. They are children, desperately in need of our compassion. If we are compassionate, we will never pass Cornyn/Cuellar. Cornyn/Cuellar punishes kids for their mistaken belief that we are a compassionate nation.
If we are compassionate, we will fund resources for kids at the border, understanding that the real solutions lay within broader, deeper, longer responses—fixing our broken immigration system, giving our courts the resources they need, and addressing the problems in the countries driving these children away. We have a limited time to make the right decision—but making the wrong decision will undoubtedly cost children their lives.
This analysis prepared by La Union del Pueblo Entero (LUPE) drawing on materials by Center for American Progress and Kids In Need of Defense (KIND).
La Union del Pueblo Entero – www.lupenet.org
Center for American Progress – www.americanprogress.org
Kids In Need of Defense (KIND) – www.supportkind.org/en/