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Expedited Deportation & the Humanitarian Crisis on the Border
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Why are some people suggesting that we expedite deportation of children from Central America?
Prior to the recent influx of unaccompanied children coming across our southern border, U.S. immigration courts were already backlogged. The arrival of so many children has only added to the insufficient capacity of our courts. Recently, some political leaders have called for "expediting deportations" in order to send a message to Central Americans that children who come to the U.S. will not be allowed to stay. Initially, the White House cited the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) as the reason children could not be immediately deported. Since then, many have called for that provision to be changed.
What is the William Wilberforce Trafficking Victims Protection Reauthorization Act?
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 is part of a multi-decade effort to combat human trafficking both at home and abroad. The original legislation was the Trafficking Victims Protection Act of 2000. The TVPA has been updated and reauthorized in 2003, 2005, 2008 and again in 2013.
In the 2008 reauthorization bill signed by President Bush, a provision entitled "Enhancing Efforts to Combat the Trafficking of Children" was added to the legislation; it is now codified at 8 USC 1232. This provision requires screening, process, and counsel for children due to their especially vulnerable nature in order to better identify child victims of human trafficking. There is one set of procedures for children from countries "contiguous to the United States" and another for children from all other countries.
If a child is from a contiguous country (Mexico or Canada), how do we decide whether to deport him/her?
If a child is from a country contiguous to the United States, the Department of Homeland Security (note: Border Patrol falls under DHS) screens the child within the first 48 hours, and if they find no evidence of trafficking or fear of persecution, then they may return the child to the country of origin without the child going before an immigration judge or having access to non-law enforcement child experts or legal counsel.
If a child is from a noncontiguous country (not Mexico or Canada), how do we decide whether to deport him/her?
If a child is from somewhere besides Mexico or Canada, then the child will be transferred from DHS to Health and Human Services (HHS), under which the Office of Refugee Resettlement (ORR) falls. ORR is tasked with providing a safe and secure setting for the child; ranging from maintaining custody themselves to placement with family members or even in witness security programs, if necessary. Consistent with family law (as opposed to criminal law), ORR is tasked with finding the "least restrictive setting" that is "in the best interest of the child." ORR also appoints a child advocate, provides some legal orientation, and "to the greatest extent practical," provides "access" to counsel—though providing an attorney is not legally mandatory.
Are there other laws governing the treatment of unaccompanied children?
The TVPRA of 2008 creates screening mechanisms to detect human trafficking victims, but the larger legal framework of how we treat unaccompanied children is found in the Homeland Security Act of 2002. After the September 11 terrorist attacks, the Bush Administration created the Department of Homeland Security and reorganized a host of agencies. As part of that legislation, custody and responsibility for the care of unaccompanied children was transferred from former Immigration and Naturalization Services to the Department of Health and Human Services. Now codified at 6 USC 279, unaccompanied children must be transferred from Homeland Security custody to HHS’ Office of Refugee Resettlement (ORR) within 72 hours of apprehension. This change was made because ORR has the expertise and training to care for children, whereas the law enforcement function of DHS does not.
What are members of the Texas Congressional delegation proposing?
Senator Cornyn and Representative Cuellar have proposed and filed H.R. 5114 and S.2611 to alter the child trafficking victim protections of the TVPRA. That proposal has met with pushback from Rep. Beto O’Rourke (D-El Paso) and Chair of the Congressional Hispanic Caucus, Rep. Ruben Hinojosa (D-Mercedes).
Chairman of the Homeland Security Committee, Rep. Michael McCaul, expressed support for expediting deportations when he said that such reform is a condition for authorizing the $3.7 billion President Obama requested to be allocated to the border crisis.
Rep. Kay Granger (R-Ft. Worth) has also recently put forth a plan.
Senator Ted Cruz is also promising to file a tougher alternative bill.
What are some concerns about expediting deportations?
Often, children who have experienced trauma do not tell their stories for many weeks. Anti-human trafficking groups such as the national coalition ATEST, which consists of 11 anti-trafficking groups like Polaris Project and IJM, argue the provisions for children from Mexico and Canada are not effective at screening child victims of trafficking. One reason for this is that children from countries where police cannot be trusted are unlikely to feel safe enough to open up to U.S. law enforcement. In order for traumatized children to report on traffickers who abused them, the right person—a trained social worker, for example—must ask the right questions at a time when the child feels safe enough to confide. Many will never report their traumatic experience in a law enforcement setting within the first 48 hours after apprehension. From a public safety perspective, failing to detect cases of human trafficking means no investigation and thus no prosecution of the perpetrators and criminal syndicates.
Some examples of child immigrants discovered to be victims of human trafficking
The Alliance to End Slavery & Trafficking (ATEST) has shared a couple of their Central American cases from their coalition partners:
"Sara" was placed in the custody of women when she was 15 years old after her mother left to find work in the U.S. Shortly after, Sara was kidnapped. Her abductors sexually abused her and earned money from trafficking her. When she was 17, she managed to escape and immediately set off for the U.S. While crossing the border, Sara was arrested by immigration and was held in detention for about two months. Eventually Sara had the opportunity to speak with a social worker who ultimately identified her as a trafficking victim. She was identified only because she was not summarily deported because of the protections in the 2008 TVPRA.
"Hugo" was 16 when he set off for Texas to be reunited with his father. During the journey Hugo was "sold" by his coyotes to another man who forced him to do farm labor. Hugo was threatened that if he told anyone about the operation, harm would come to his family. Hugo was eventually released after his "debt" had been paid. He began walking toward Houston where after three days, he was apprehended by Border Patrol while sleeping. Hugo was detained, then transferred to ORR where he was later identified as a trafficking victim. He is now living with his father and being represented by counsel that knew he had a case to receive a T visa, which provides immigration status to victims of human trafficking.
Children are especially vulnerable. The protections of TVPRA Section 235 provide children with access to trained service providers as well as time and space for potential victims to feel safe. If enacted, proposals to "streamline" and "expedite" deportation procedures could lead to an increase in victims of human trafficking being sent back into dangerous situations. Victims like Hugo and Sara were missed by DHS within the first 48 hours after apprehension. It was only after transfer to ORR custody that these cases were identified.
The faith community has been working with policy makers for decades to create laws and programs that will protect and assist victims of human trafficking at the federal, state and local levels. Lawmakers need to resist the politics of the moment calling for a "quick fix," and make sure we put adequate process and infrastructure in place so we do not risk returning vulnerable children to life threatening situations.