The Migration of Illegal Unaccompanied Minors Must Stop Now

Views From The Bench

December 23, 2014

Judges rarely make searing indictments about the policies and procedures of the parties appearing before them. However, that is exactly what Judge Andrew S Hanen of the United States District Court for the Southern District of Texas, Brownsville Division, did in the criminal case of United States of America v. Mirtha Veronica Nava-Martinez on December 13, 2013. He accuses the government of completing the mission of a criminal conspiracy to smuggle an illegal immigrant child across the border to her parent illegally residing in the United States. He alleges that the Department of Homeland Security is rewarding criminal conduct instead of enforcing immigration laws. He concludes that the Department of Homeland Security aids and abets human trafficking.

Judge Hanen’s thought provoking decision is a “must read” for anyone concerned about this issue and it is provided in its entirety for you review and consideration. Judge Hanen’s decision is attached here.

Judge Hanen’s order was issued prior to the surge of unaccompanied minors this past summer in which thousands of unaccompanied minors and families deluged our southern border and paralyzed our enforcement efforts along the border. The human tragedy that resulted demonstrates the significant consequences of a porous border. It also highlights the importance of Judge Hanen’s omniscient, articulate and well-reasoned opinion. That surge also provides clear evidence that this administration’s enforcement policies of our immigration laws serve as a magnet to promote further illegal immigration and the smuggling of illegal alien children.

This government’s abysmal response to this mass illegal migration in failing to immediately return these children with no legal basis for remaining here only reinforces the smuggler’s claims that once an illegal alien makes it to our border, they will be given a free “pass” and be allowed to remain here indefinitely. Through its laws, enforcement priorities and policies, our government has assured illegal aliens that, once across the border, our nation will pick up the tab to successfully complete child smuggling operations and subsidize the children’s continuing illegal presence at taxpayer expense. Illegal aliens released and required to report to the Department of Homeland Security for additional screening have ignored those orders with impunity. Many illegal aliens scheduled for removal hearings failed to appear. Those who have been ordered removed in absentia have not been picked up and removed.

It is critical to this nation that we address and resolve this consuming and vitally important immigration enforcement issue for the sake and safety of these vulnerable unaccompanied children, and for the financial health, security, and welfare of our federal, state, and local communities.

The first and most important reason for taking definitive action on this issue is the safety and well-being of these unaccompanied children. They are the true real life victims of this human trafficking dilemma. It is tragic to hear of them riding on top of railroad box cars through Mexico, after having been placed in the hands of human traffickers and drug smugglers. They travel in the company of gang members from whom they claim they are fleeing. They are victims of rape, murder, robbery. They are subject to the demands of their supposed benefactors and protectors. One can only imagine the emotional trauma they suffer when they are separated and isolated from the home and family they know. They are thrown into inherently dangerous environments with no parental guidance and no resources to meet their daily needs. There must be a deterrent to insure that they are not subjected to or placed in these circumstances in the first place. Their smugglers must not rewarded for their criminal deeds. The abuse of these children must be stopped now.

The United States government cannot afford the costs of a mass influx of unaccompanied minors. The costs are staggering and, for the most part, unnecessarily incurred. Unnecessary because our failed immigration policies and our government’s refusal to properly address this problem. The rule of law must be honored. We must demonstrate the political will to properly implement and execute our immigration laws. The mass migration of unaccompanied minors drew our Border Patrol agents from their assigned responsibilities of protecting and defending our borders so they could process and care for these children. The screening of these children was minimal and incomplete. The costs of transporting, feeding, housing, providing health care and accommodating the needs of these children was phenomenal. The President’s requested $3.7 billion in supplemental appropriations for FY2014 to finance the unaccompanied minor crisis. The additional funds were needed by the Department of Homeland Security, the Department of Health and Human Services, the Department of Justice, the Department of State, the Department of Education, and the U.S. Agency for International Development. The resources of all of these agencies were strained and many of their employees were diverted from other important work to manage this devastating situation. The saddest part of this whole scenario is that the federal government has not proposed any legislative changes that will eliminate or reduce the costs relating to the migration of these unaccompanied minors. Instead, this administration has not even contemplated a solution or resolution of this problem, but has budgeted for a surge of similar magnitude to the one we experienced in 2014. It extends funding of the Department of Homeland Security at current levels (through February 2015) and funds the rest of the government for the remainder of Fiscal Year 2015.This includes the allocation of current funding levels for the other Departments mentioned above who are impacted by the mass migration of unaccompanied minors. Within the Department of Health and Human Services the new Budget appropriates new funds to address the costs of housing and care for unaccompanied minors. The amount budgeted represents an $80 million dollar increase from FY 2014 for a total appropriation of $948 million for unaccompanied minor care. This funding level is purported to be sufficient to care for the same number of unaccompanied minors that arrived last year without having to use emergency beds or housing in military bases.

State and local governments have similarly not been spared the devastating financial impact from this uncontrolled influx of illegal unaccompanied minors. Texas has, at great expense, called out the National Guard to assist in monitoring the border. This was necessitated by the unaccompanied minor surge. It has been estimated by FAIR that it will cost $761 million per year for educating unaccompanied illegal alien minors. Education costs, including providing bilingual education is borne by the states. The costs related to the resettling of unaccompanied minors in local communities is particularly troubling for their leaders as there is no transparency in resettling minors. The Department of Health and Human Services is said to be secretly working with organizations across the country to place unaccompanied minors in various communities without advising state and local officials, thus leaving them without sufficient time to budget for the costs of the resettlements. Further, members of the National Sheriffs Association have testified that although they were told that all of the resettled minors had no criminal records, they are finding that, as a result of the influx of illegal alien minors over the summer, the drug cartels have accelerated their efforts to increase drug and human trafficking into the United States. The sheriffs have also testified that many of the “minors” entering the country are themselves members of gangs such as MS-13 and that it is essential for local law enforcement to identify them quickly. They further complain that the Secure Communities program has been crucial in these efforts but that the current administration is dismantling that program. States and local communities and our law enforcement officers should not bear the financial and security burdens of the federal government’s abdication of its responsibilities to remove illegal aliens who have no legal basis to enter and remain here.

There can be no doubt of the importance of stopping the flood of incoming illegal unaccompanied minors. Political considerations must be set aside and the needs of these vulnerable children and the nation must take precedence. Corrective legislation which will adequately address this problem and its proper implementation will go far in establishing effective enforcement policies and reducing the costs of illegal immigration. The defunding and elimination of the President’s ill-advised executive amnesty program is also recommended as that initiative not only provides further incentives for illegal immigration of unaccompanied minors, but also strongly encourages the unlawful migration of illegal aliens of all age groups.

An overly restrictive interpretation and implementation of the William Wilberforce Trafficking Victim Protection Reauthorization Act of 2008 (TVPRA), which was not appropriately considered within the context of the Immigration and Nationality Act in its entirety, has proven to be an obstacle to the proper processing of unaccompanied minors at the border. This law was enacted to combat child trafficking and protect vulnerable minors who had been the victims of severe forms of trafficking in persons (such as sex trafficking for commercial purposes or obtaining labor or services through involuntary servitude, debt bondage, or slavery) or who had a credible fear of persecution if returned to the child’s country of nationality. The TVPRA provided special rules for the processing of unaccompanied minors, but the rules varied depending on whether these minors were from countries contiguous to the United States (Mexico and Canada) or whether they were from noncontiguous countries to the United States (all other countries). Unaccompanied minors from Mexico and Canada could be returned expeditiously without formal removal proceedings if they were not victims of severe forms or trafficking or did not have a credible fear of persecution. Unaccompanied minors from countries other than Mexico and Canada as well as those apprehended away from the border are transferred to the care and custody of the Department of Health and Human Services and placed in formal removal proceedings (often in communities where they had been reunited with illegal alien family members).

The legislation was well intentioned and was meant to protect vulnerable illegal unaccompanied minors. At the time of enactment there were few such cases and it was not envisioned that its protections would serve as a catalyst for a surge of thousands of illegal unaccompanied minors being smuggled into the United States. Further, it was not envisioned that it would allow the admission and resettlement of minors inadmissible for other reasons, such as gang members or others with criminal records. Fiscal Year 2014 showed an increase of 77% over the prior year’s apprehensions for unaccompanied minors. The Center for American Progress postulates that fiscal year 2015 could result in arrivals in excess of 200,000 children. It is clear that the flood of unaccompanied minor children will continue unchecked unless there is some change in legislation and enforcement policy which will deter this mass migration.

We have reviewed several legislative proposals introduced in the last session by members of the House of Representatives. We believe that one of the proposed bills merits the greatest potential for stopping the illegal migration of unaccompanied minors. H.R. 5137, introduced under the sponsorship of Representatives Goodlatte and Chaffetz and cosponsored by other respected members of the House of Representatives, best amends existing law to establish a meaningful framework to correct deficiencies in current enforcement of our immigration law. Unfortunately, this bill received little attention in the past session as it had been among those bills designated as “dead on arrival” by the Senate and the President. Now, however, with critical changes in the membership of the House of Representatives and the Senate and with the changes in attitude about immigration enforcement by the electorate, there is hope for a meaningful public dialog leading to enactment and implementation of this bill. FAIR will actively support and promote this bill.

Here, in a nutshell, are the major provisions of H.R. 5137 which will serve as a deterrent to the mass migration of illegal unaccompanied minors and hopefully prevent the departure of these children from their home countries before they become victims of smuggling operations and endure the inherent dangers of attempted illegal reunification with family members in the United States:

  1. R. 5137 eliminates the distinction between unaccompanied minors from contiguous and noncontiguous countries so illegal unaccompanied minors from all countries may, in appropriate circumstances, be expeditiously and safely removed without formal removal proceedings or costly placement in the care and custody of the Department of Health and Human Services. The protections of TVPRA remain for those unaccompanied minors who have been the victims of serious forms of human trafficking and those who have credible fears of persecution and desire to pursue claims for asylum. The bill requires the Secretary of State to negotiate repatriation agreements with all countries, not just countries contiguous to the United States. All children are to be returned during business hours to appropriate governmental officers who have training in the agreements.
  2. R. 5137 clarifies Congressional intent by clearly stating that in no instance shall the government bear any expense for legal counsel for any person in removal proceedings or in any appeal proceedings before the Attorney General from any removal proceedings. This is consistent with INA Section 292 which provides that a person in removal proceedings or in any appeal therefrom shall have the privilege of being represented at no expense to the government by such counsel, authorized to practice in such proceedings, as he shall choose.
  3. R. 5137 amends the definition of “credible fear of persecution” to include the standard that “it is more probable than not that the statements made by the alien in support of the alien’s claims are true”. It also requires that DHS employees exercising expedited removal authority ask and record questions and answers in a uniform fashion, directs that sworn and written statements taken as part of the record shall be accompanied by a recording of the interview where practicable, and requires that a competent interpreter be used if no government employee is available.
  4. R. 5137 clarifies that parole is not an admission and narrows humanitarian and public interest parole to allow parole for only those cases involving an urgent humanitarian reason or a reason deemed strictly in the public interest.
  5. R. 5137 defines “gang member” and amends INA Sections 212(a)(2) and 237(a)(2) to create new grounds of inadmissibility and removability where a consular officer, the Secretary of Homeland Security, or the Attorney General have reason to believe an alien is a member of a criminal gang or has participated in the activities of a criminal gang. Gang members are currently inadmissible under INA 212(a)(3)(A)(ii) providing that an alien who a conselor officer or the Attorney General knows or has reason to believe seeks to enter the United States to engage in any lawful activity is inadmissible. Thus, such an alien is disqualified from obtaining a visa or admission into the United States. The Department of Foreign Affairs Manual provides a legal basis for determining whether gang members are inadmissible under this section. See 9 FAM 40.31, Note 5.3. See also 9 FAM 40.31, Note 1.3 wherein the Department of State provides guidelines for determining whether an applicant for a visa is a member of an organized crime group. While these guidelines are not specifically incorporated in H.R.5137, the Department of Homeland Security could certainly give them consideration while drafting implementing regulations for these new grounds of inadmissibility and removability for gang membership. This bill provides no waiver for renunciation of gang membership and requires mandatory custody for anyone inadmissible or removable under the new gang sections. The bill also eliminates the prohibition of removal of an alien gang member to a country where the alien’s life would be threatened because of race, religion, nationality, membership in a particular social group, or political opinion. Gang members would be ineligible for asylum, temporary protected status, and special immigrant visas under this bill also.
  6. R. 5137 redefines unaccompanied alien child to require that there be no parent or legal guardian or parent in the United States; no parent or legal guardian in the United States available to provide care and physical custody; or no sibling or cousin over 18 years of age, aunt, uncle, or grandparent available to provide care and physical custody. The bill otherwise retains the elements of the prior unaccompanied child definition: 1. No lawful status; 2. Less than 18 years of age. The bill directs that the Department of Homeland Security and the Department of Health and Human Services revoke the designation as an unaccompanied child when such a family member or legal guardian is found in the United States and is available to provide care and physical custody.
  7. R. 5137 eliminates the exemption of unaccompanied alien children from removal to a safe third country and the one year filing deadline for filing asylum applications.
  8. R. 5137 requires the Department of Health and Human Services to share information with the Department of Homeland Security any information on an unaccompanied child, including location of the child and the person(s) to whom custody has been transferred. The sharing can be for any law enforcement objective including enforcement of immigration laws.
  9. R. 5137 provides additional immigration judges and ICE trial attorneys.
  10. R. 5137 removes provisions in the TVPRA stating that a child not be placed in a secure facility absent a determination that the child poses a threat to self or others or has been charged with having committed a criminal offense.

Having recommended the appropriate legislative proposals to solve the unaccompanied alien minor mass migration problem, we are left with one remaining important point of discussion which does not require legislative action, but rather a change in enforcement priorities and attitude by the Department of Homeland Security. We deeply share Judge Hanen’s concerns that this administration has abdicated its statutory responsibility to remove illegal aliens from this country to the point that its enforcement policies are tantamount to criminal conduct. The Department of Homeland Security must enforce our current laws as they exist, rather than how they would like them to be. This means holding those responsible for violating our laws accountable. This means there should be consequences rather than rewards for parents, family members, and others who conspire to smuggle unaccompanied illegal minors into this country. We share Judge Hanen’s disdain for the fact the illegal alien parent of the smuggled child was not prosecuted under our criminal smuggling laws. We share his concerns that there were no assurances that this illegal alien parent currently residing in this country would be placed in removal proceedings and charged with inadmissibility under INA section 212(a)(6)(E)(i) or removability under INA section 237(a)(1)(F) for smuggling and human trafficking. These individuals who are already illegally enjoying the benefits of residing in this country, who have so little regard for the safety and welfare of their children, and who have no respect for our rule of law are not deserving of the right to remain here. If United States citizen parents would put their children in the dangerous situations endured by these unaccompanied illegal alien minors who have been entrusted to smugglers and other criminal organizations, they would be charged with child abuse or neglect—not shielded from prosecution. Current enforcement policies shield these illegal alien family members from removal proceedings as individuals given custody of these minors are not even asked of their immigration status. Some might even qualify for deferred action under the President’s ever expanding executive amnesty program. Illegal alien families reunited or given custody of these unaccompanied children will argue that it is inhumane to return these children to their home countries where, in some cases, there is no parent guardian or custodian present to adequately take care of them. However, family reunification goes both ways. If these conspiring parents are not legally present and have no legal basis for remaining here, they should be placed in removal proceedings immediately and returned to their home countries with their minor children and resume or continue their parental responsibilities there. Nothing will stop the flow of illegal alien children across our borders faster than the prompt removal illegal family members that participate in smuggling them here.

There is no entitlement to legal residency or citizenship for illegal aliens residing in our country. Rather the law requires that if illegal, they will be returned to their country unless they can honestly establish a legal basis for relief from removability. Our current laws provide ample due process opportunities to assert those claims for humanitarian relief. It is not required nor is it advisable for the United States to redraft its laws to accommodate or provide waivers for every immigration violation and every illegal act committed by those who come or remain here without the authority of our government. It is not required nor is it advisable for our government to create incentives or rewards either by statute or policy to draw even more illegal aliens to our borders. It is not required nor is it advisable to provide citizenship, residency or even temporary quasi or pseudo legal stature to illegal aliens who violate our laws and regulations with impunity, disrespect our moral values, endanger our national security, or drain our national financial resources.

Get Connected

Sign up for our email newsletter to stay up to date with immigration reform in the United States.

Attorneys United for a Secure America (AUSA) is a non-partisan affiliation of talented attorneys dedicated to pursuing cases that serve the national interest when it comes to immigration law.

If you are interested in joining the network, visit the AUSA website.