Homeland Security Watch

News and analysis of critical issues in homeland security

July 28, 2014

This week the battle for the border will be on Capitol Hill (stand-off predicted)

Filed under: Border Security,Immigration — by Philip J. Palin on July 28, 2014

The onslaught of children at the southern border of the United States has several sources.

It appears that a law passed in late 2008 to deal with human trafficking — especially the trafficking of children — has had an almost opposite effect.

The law, which allows a wide class of children greater protection once they reach the US border, has been mis-characterized by criminal parties (especially in Central America) in order to motivate families to pay for their children to be smuggled through Mexico to the US border.

Over roughly the last year a rapid increase in children presenting themselves at the border has overwhelmed the existing immigration hearing system producing a defacto ability for children to remain in the United States for an extended period pending hearing.  This has reinforced the claims made by criminals.  It is also a problem that too many US officials tended to minimize until this last Spring.

Families are also motivated by a dangerous and deteriorating situation — especially in Honduras, Guatemala, and El Salvador — where a confluence of economic turmoil, organized gangs, corrupt officials and other profound dysfunctions encourage taking significant risks in order to escape. The President of Honduras suggests many of these problems have their origin in the US demand for drugs.

The Center for Public Policy Priorities in Austin, Texas recently released a report that highlights significant problems when children are repatriated.  These problems have been exacerbated by the surge in numbers.  Bloomberg’s BusinessWeek published a story last week on the range of challenges involved in repatriation.

On Sunday conservative commentator George Will told Chris Wallace, host of Fox News Sunday, “My view is that we have to say to these children, ‘Welcome to America. You’re going to go to school and get a job and become Americans’.”

To mitigate the current crisis Congress needs to act this week before it leaves for a long August break.  Unless additional funding and policy changes are legislated the Secretary of Homeland Security warns, “… we’re going to run out of money to deal with this. I’ve got my CFO working overtime this week working out how we are going to pay for this if Congress doesn’t act.”

Some suggested measures include:

Clarify the current legal situation with Central American families: This has been ongoing since at least March.  Some progress seems to have been achieved.  In June the number of children arriving at the border was reduced by about half compared to prior months.  The US government has increased official communications.  But unofficial information has potentially been even more influential.

Expedite the hearing process: Additional immigration judges, changes in law, and procedural adjustments could reduce the current log-jam and more quickly return children not found to qualify for some extended immigration status.  This would presumably reduce the motivation to make the risky and costly trip to the US border.

Amend the 2008 law, especially to facilitate prompt-return: Mexican and Canadian nationals can be returned without the hearing process currently afforded other children. But many are resisting this given the dangers facing Central American and other children. Under current law there is a prima facie right to hearings and the ethical implications of eliminating this right strike many as unacceptable.

Enhance security at Mexico’s southern border:  Reducing out-migration from Central America (more than a thousand-miles south of the US border) makes theoretical good sense.  There are, however, problems with corruption and lack of capacity related to Mexico’s National Institute of Migration. Still it is worth attention over the long-term.  It is more and more in Mexico’s self-interest as a stronger Mexican economy and comparative security also attracts immigrants.

Enhance US border security: Considerable progress has been made over the last ten-to-twelve years.  More on current House Republican proposals in this regard is available here.  Also see related prior post at HLSWatch

Allow application for refugee status in the country-of-origin: The idea being this would discourage the risky journey while responsibly addressing those most seriously threatened.

Increase country-of-origin efforts to encourage staying at home.  Both governmental and non-governmental programs exist to reduce severe want and fear.  Many would benefit from additional support.  Yesterday, George Will (see original reference above) argued, “Long term, the most effective legislation passed concerning immigration wasn’t an immigration bill at all. It was Bill Clinton’s greatest act, passage of the North American Free Trade Agreement that put North Americans on the path to prosperity. We need to do something similar for the countries in which these children are fleeing.”

What other near-term mitigation efforts or longer-term solutions do you have?

Most informed observers doubt that the House and Senate will take practical legislative steps before they are scheduled leave Capitol Hill late this week.  More on fast-breaking legislative prospects from:

The Hill

Roll Call

Politico

–+–

UPDATE:  Monday morning’s Diane Rehm Show, heard on many NPR stations, focused on efforts to address the “child migrant crisis”.   Joining Ms. Rehm and receiving call-in questions and comments were:

Laura Meckler, staff writer, The Wall Street Journal.
Carl Meacham, Americas program director at Center for Strategic and International Studies.
Mark Hugo Lopez, director, Hispanic trends, Pew Research Center
Marc Rosenblum, deputy director, U.S. immigration policy program, Migration Policy Institute

You can listen to the hour-long discussion at the following website by clicking on the “LISTEN” icon or word.

Share and Enjoy:
  • Digg
  • Reddit
  • Facebook
  • Yahoo! Buzz
  • Google Bookmarks
  • email
  • Print
  • LinkedIn

7 Comments »

Comment by Donald Quixote

July 28, 2014 @ 2:35 pm

There is a challenge with the definitions for the current situation. Human trafficking is very different from human smuggling according to the law, but the violations and conspiracies can overlap.

A very controversial question: Should the children from Syria and Iraq not be provided the same opportunity and protection?

Comment by Philip J. Palin

July 28, 2014 @ 2:54 pm

Donald Quixote:

This is a new issue for me. I am trying to learn as I engage it. The trafficking/smuggling distinction is referenced in source materials. I understand — perhaps insufficiently — that trafficking is “smuggling” with intent to exploit in the target nation. Smuggling-without-such-intent is not trafficking. How would you further define?

My current understanding is that any unaccompanied minor — other than those from Canada and Mexico — who presents him or her self to US border agents is prima facie covered under the Wilberforce Act. Correction?

Comment by Arnold Bogis

July 28, 2014 @ 3:13 pm

Phil,

Juliette Kayyem referred to this situation (on a Boston Public Radio program) as a “mass migration,” and something that the U.S. has faced before and expected to deal with in the future — in general, if not as children heavy.

Donald,

I’m not sure about what exactly you are referring to and what would be controversial. My first instinct was to reply “of course, if those Iraqi and Syrian children present themselves at the U.S. border.” Instead, are you suggesting that we have special responsibility in those cases for the situations on the ground, so that we should provide special privileges to child refugees in those conflict zones but not to, say, kids in Sub-Saharan Africa who have been forced into camps?

Comment by Donald Quixote

July 28, 2014 @ 3:28 pm

The distinction can be complex at times with several guiding federal laws and court rulings, but an easy definition may be:

The United Nations defines human trafficking as the recruitment, transportation, transfer, harboring, or receipt of persons by improper means (such as force, abduction, fraud, or coercion) for an improper purpose including forced labor or sexual exploitation.

Human smuggling, a related but different crime, generally involves the consent of the person(s) being smuggled. These people often pay large sums of money to be smuggled across international borders. Once in the country of their final destination, they are generally left to their own devices. Smuggling becomes trafficking when the element of force or coercion is introduced.

The U.S. Government defines human trafficking as:

• Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.

• The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

http://www.nij.gov/topics/crime/human-trafficking/pages/welcome.aspx

What Is Human Trafficking?

Although the legal definition of human trafficking is complex, the simple meaning of it is not. It occurs when a person is induced by force, fraud or coercion to:

• Work under the total or near-total control of another person or organization (slavery or involuntary servitude)

• Forced to pay off a loan by working instead of paying money, for an agreed-upon or unclear period of time (debt bondage) or even without an agreement as to the timeframe (peonage)

• Perform a sex act for money or anything of value (if under 18, force, fraud or coercion is not required)

According to U.S. Immigration and Customs Enforcement, although many people think of the sex trade when they think of human trafficking, this crime also occurs in such labor situations as:

• Domestic servitude

• Labor in a prison-like factory

• Migrant agricultural work.

In addition, with respect to labor situations, the initial agreement to travel or to perform work does not mean that the employer is later allowed to restrict a victim’s freedom or use force or threats to obtain repayment.

Human trafficking and human smuggling are sometimes, but not always, linked, because not all individuals who are smuggled are trafficked, and movement is not required for trafficking to occur.

http://www.cbp.gov/border-security/human-trafficking

Comment by Donald Quixote

July 28, 2014 @ 5:02 pm

The applicability of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 remains to be seen in these future immigration hearings:

http://thehill.com/blogs/pundits-blog/immigration/213167-trafficking-law-largely-inapplicable-to-border-crisis

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2010/William%20Wilberforce%20TVPRAct%20of%202008%20July%20212010.pdf

http://www.state.gov/j/tip/laws/113178.htm

Comment by Philip J. Palin

July 29, 2014 @ 5:02 am

Donald Quixote:

Many thanks. Very helpful. Last night I read the 2005 Act and 2008 amendments. Seems likely current Wilberforce Act standards do NOT match many, even most, of those children presenting at the border. But as a matter of legal procedure, seems to me such children can claim protection under the Wilberforce Act and the appropriate enforcement action — under the current law — is temporary detention and home placement pending hearing. Which begs the ethical question, but as long as the hearing system is so delayed produces something very close to the current situation.

Does this miss or mis-characterize the problem?

Comment by Donald Quixote

July 29, 2014 @ 8:07 am

There are many challenges within the administrative immigration process. The number of conflicting laws, rules, regulations and court rulings is only outweighed by the discretion to interpret them in your own view. Many believe that the process is anything you want it to be, so the impact of the 2008 Act remains to be seen. In many of these current cases, trafficking is in the eye of the beholder or most powerful lobbying or political group.

RSS feed for comments on this post. TrackBack URI

Leave a comment

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>