Child legal advocates are worried some Central American kids turning themselves in at the border could be returned to peril if Congress amends laws to speed up their repatriation to home countries.
Changes that President Obama may seek in anti-trafficking laws — which were developed in recent years with bipartisan support — could give U.S. Border Patrol agents authority to “screen” these children to assess if they have a legitimate “credible fear” of being sent back to countries with high murder rates and rampant gang violence.
Border Patrol agents’ ability to interview children and fairly assess if they face danger if returned to home countries has been criticized, as the Center for Public Integrity reported in July 2011.
Currently, detained Central American minors are supposed to be transferred to non-law-enforcement officials’ custody and shelters where they have access to legal advisers and trauma specialists who are trained to assess their histories and explain legal options to them in language minors can grasp.
Under changes being contemplated, kids could instead be put on a path to repatriation before they get a chance to talk to Spanish-speaking child-welfare specialists and fully understand that they have a right to appear before an immigration judge.
Agents could assume a decisive role in assessing if kids are truly in need of refuge — and then begin proceedings to send them back, a prospect that worries advocates. If kids can’t talk to official government asylum officers or immigration judges, “they’re not going to get access to even ask for asylum,” said Jennifer Podkul, senior program officer for migrant rights and justice at the Women's Refugee Commission in Washington, D.C.
The White House has not yet provided details of legal initiatives it might pursue to speed up the return of minors arriving on the border to their home countries. The administration plans to ask for “greater discretion” for the Department of Homeland Security to repatriate Central American minors more quickly, according to a letter President Obama wrote to congressional leaders.
But multiple advocates believe giving agents more authority to interview Central American minors and make critical decisions about what to do with them is a strong possibility, given what some government officials have disclosed in talks with advocates who subsequently spoke with media this week.
In December 2001, a U.S. Government Accountability Office report found that Border Patrol agents lacked required basic training in “immigration fundamentals” and law.
As the Center’s 2011 report explained, a Mexican boy who was being used as a “mule” to carry drugs several years ago sought out and turned himself in to Border Patrol agents. He asked agents to let him stay so he could escape from a crime ring that his uncle was involved in. Agents told the boy to go back to Mexico to get more information on traffickers and then seek refuge, the boy eventually told Podkul, who was a pro bono immigration lawyer at the time.
The boy turned himself into agents multiple times before they took him into custody and transferred him to a shelter in Virginia, where he happened to meet Podkul and was interviewed by asylum officials and Homeland Security investigators.
Children have no right to the appointment of a lawyer in immigration proceedings and rely on pro bono aid.
In another case, Mexican teen girls who had been caught and repatriated multiple times were later discovered after police broke up a sex-trafficking ring in North Carolina, Maryland and New Jersey in 2007. Some of the girls were caught at the border prior to 2007, Podkul said, but Border Patrol agents failed to discover that the girls were being trafficked by men who were traveling with the teens.
Podkul represented some of the girls after the ring was broken up. She said the men smuggled the girls into the United States with promises of jobs and then forced them into acts of prostitution.
Currently, Mexican and non-Mexican unaccompanied minors detained while entering the United States are treated differently in some ways under the Homeland Security Act of 2002 and the federal Trafficking Victims Protection Act of 2000, which has been reauthorized and amended since that time to enhance protections for minors.
Federal law requires that within 72 hours after agents detain children of any nationality, the minors be transferred to the custody of the U.S. Department of Health and Human Services, whose Office of Refugee Resettlement supervises shelters for kids. That’s where many kids get briefed on rights and social workers have a chance to meet them.
Mexican children, however, haven’t been transferred nearly as frequently to these shelters as other kids because it is much easier to arrange their repatriation over the U.S.-Mexico border within 72 hours.
But as a protective measure — because of reports that Mexican kids were being sent back to danger — the anti-trafficking law was amended in 2008 to require that Border Patrol agents conduct a minimum screening of Mexican (or Canadian) minors in their custody.
The mandatory screening requires agents tell Mexican kids about their right to be transferred to a shelter and the right to appear before an immigration judge. Agents are also supposed to ask questions designed to help them decide if a child is likely the victim of traffickers or if they seem afraid to be sent back.
Because it means they can get out of detention relatively quickly, Mexican kids often consent to being returned at the nearest port of entry and give up that right to appear before a judge. However, as violence in Mexico has increased, more kids—like the boy in the Center story—have begun to express fear of being returned.
A 2011 report by Appleseed, a Texas-based public-interest law group, also documented cases of Mexican kids released back into dangerous circumstances even after these screenings.
To cope with the current flood of Central American kids, Podkul and other advocates say, Obama may suggest that Congress amend laws so that Border Patrol agents can treat the Central American kids more like Mexican kids.
Rep. Lucille Roybal-Allard, a Los Angeles Democrat, has had legislation pending since 2011 that would require licensed social workers to assist Border Patrol agents in screenings of some migrant kids. The proposed Child Trafficking Victims Protection Act, has one Republican co-sponsor, Rep. Ileana Ros-Lehtinen of Florida.
This week, Roybal-Allard released a statement supporting Obama’s request that Congress allocate more than $2 billion to address the emergency at the border and what to do about unaccompanied minors. But she also expressed concern about relaxing any existing access that migrant children now have to consult with social workers and lawyers. She said: “We in Congress should be extremely cautious that we do not undermine the basic protections migrant children have under current law.”