The debate centers on a provision in the anti-trafficking law that protects children entering the country alone who are not from Mexico or Canada from a quick deportation by giving them an opportunity to appear at an immigration hearing. Changing this process, which predates the 2008 bill, would be a huge mistake and could result in driving children into the hands of traffickers, where their lives are at risk. These young people, many of whom are traumatized by their experiences in their home countries and by their long journeys to the U.S., need adequate time and assistance to recover before sharing their story with officials. As it stands now, they are placed into the custody of the Department of Health and Human Services, which must place the child “in the least restrictive setting that is in the best interest of the child” and potentially reunite him or her with family members in the U.S., according to the law. The large majority do not have access to an attorney and must make their case for protection from deportation before an immigration judge alone.
These young people should have full and fair adjudication of their cases and be provided access to attorneys to help them through the process. Ultimately, a number of them will be found ineligible for U.S. protection and will have to return to their home countries – but only after proper hearings.
Children from contiguous countries are treated differently. Prior to 2008, all unaccompanied Mexican children could be immediately sent back across the border without any determination if they would be returning to serious harm. Now, U.S. Customs and Border Protection must screen Mexican children to determine if they are victims of trafficking, are at risk of such abuse, or express a fear of return. If any of these concerns are present, CBP must transfer the child to HHS, as it does with minors from other countries. If not, and the child seems capable of making an independent decision, he or she can be returned across the border. While such screening is an improvement in the protection of Mexican children over the previous policy, there is significant concern that CBP, a law enforcement agency not versed in child welfare, is inadequately performing it.
To change the law and apply an accelerated screening process to unaccompanied children from other countries would almost certainly lead to large numbers of them being sent back to serious harm and into the arms of traffickers. The U.S. is a global leader in protecting the most vulnerable and should provide these children with fair access to our immigration system and the chance to apply for U.S. protection under our laws.