On June 17th, Hillary Clinton discussed the growing child-migrant crisis in south Texas — and called for most of the tens of thousands of children and teenagers to be sent back to their home countries in Central America, as long as their parents could be found.
"We have to send a clear message: just because your child gets across the border doesn't mean your child gets to stay," Clinton said at a CNN-hosted town hall.
But there's one big problem with Clinton's proposal. About half of the children coming over the border could qualify for humanitarian protection under international or US law — although it often takes years to resolve this. Acting quickly and decisively, as Clinton wants, would basically mean ending the asylum process in the United States as we know it.
Here are five ways the US could make it easier to send child migrants back from Texas to Central America. But the most "decisive" ideas are the ones with the biggest problems.
1) Mandatory deportation for everyone who enters the US without papers
The proposal: The National Border Patrol Council, the union representing Border Patrol agents, thinks that this is the only real solution to the crisis. In a statement released on June 16th, it said, "this situation will continue if there are not consequences for breaking the immigration laws of the United States… Mandatory detention and deportation is the only consequence that will resolve the problem."
That sentiment's been echoed by Republicans including Rep. Raul Labrador, who called on President Obama to "seal the border."
The problem: There's no way to do this without changing federal law to get rid of asylum entirely. The definition of asylum (as opposed to refugee status) is that instead of being able to apply before entering the US, someone fleeing persecution arrives in the US and then explains why it's unsafe for them to return.
"We've learned nothing from history if we don't understand that people fleeing persecution don't have the luxury of obtaining legal documents," says law professor Karen Musalo of the University of California-Hastings. "That is why under US laws, we allow people to apply for asylum — regardless of their possession of legal status."
Musalo points to Oskar Schindler and Raoul Wallenberg, who "we celebrate for helping Jews escape persecution through the use of false documents."
The US has signed multiple international agreements requiring it to offer asylum. Changing the law would break those agreements. "We signed onto the 1967 Protocol for the Status of Refugees, and (mandatory deportation) would violate that agreement," says asylum lawyer Jason Dzubow. "It would also violate the Convention Against Torture, saying we won't send somebody back to a country where they'll be tortured."
Even if Congress and the Obama administration were willing to do all of that, it wouldn't necessarily apply to children already here, some of whom may be in the process of filing asylum claims. To "send a message" by sending child migrants home, the federal government would have to retroactively eliminate asylum for people who've already arrived.
As Musalo points out, that would violate the rule of law — the very thing that opponents of unauthorized immigration seek to protect. "The US is a country of laws. We have immigration laws which provide certain protections and remedies and forms of relief for undocumented individuals, including children."
2) Subjecting child migrants to "expedited removal," like adults
The proposal: Short of attempting to seal the border entirely, the most efficient way to send child migrants back to Central America en masse would be to expand the use of "expedited removal" — a form of deportation that doesn't include a hearing in front of an immigration judge.
In theory, expedited removal can't be used for immigrants who claim to be eligible for asylum — but without legal representation, an immigrant might not necessarily understand his or her options. (Expedited removal is currently used to deport most adult immigrants who are caught along the US/Mexico border.)
The problem: It wouldn't be legal. The 2008 Trafficking Victims Protection Reauthorization Act prohibits expedited removal from being used on children under 18. So in order to use expedited removal for child migrants, either Congress would have to change the law, or the Obama administration would have to break it.
Homeland Security Secretary Jeh Johnson confirmed on April 24th that the administration believes expedited removal is illegal. So amending current law would be up to Congress.
And just as with "sealing the border," changing the law and then applying it retroactively raises basic concerns about the rule of law. "We are obligated to apply the existing laws and to permit children to apply for the protections and remedies provided for them under the law," says law professor Musalo.
3) Declare that being targeted by a gang doesn't count as persecution
The proposal: There are several adjustments that could be made to existing asylum law that would effectively make it impossible for current child migrants to qualify.
Many of the children and teenagers who come to the US from Central America say that they left their home countries primarily because of fear of violent gangs. In many cases, this isn't an abstract fear — gang members will attempt to recruit a teenager, and then, if he or she resists, go after the teenager's whole family.
Asylum law is designed for people who are seeking protection from the government — not for "non-state actors" like gangs. The Board of Immigration Appeals, which sets the standards for immigration court cases, has told judges not to approve asylum claims just based on fear of persecution by a gang.
Still, this doesn't prohibit immigrants from making any gang-related asylum claims, however. Asylum lawyer Dzubow says, "If the gang wants to kill everyone in my family, including me, family is a 'particular social group' " — one of the five categories of persecution that are protected in asylum law. "And so I might get asylum for that reason."
The government could change that standard, and say categorically that no one who's being persecuted by gangs is eligible for asylum in the United States.
The problem: This change would shorten the amount of time it takes to resolve a child's immigration case. But it wouldn't eliminate it entirely. Sending children back months or years from now isn't swift enough to "send a message," as Clinton prefers.
And many asylum experts feel that the distinction between state and "non-state" persecution is arbitrary to begin with. "If, say, the ruling party of Iran tries to recruit you, and you say no, and then they try to kill you, you can get asylum," says Dzubow. But "if a gang tries to recruit you, and you say no, and now the gang wants to kill you, that's not a basis for asylum."
4) Barring child migrants from getting legal status based on family "abuse, abandonment or neglect"
The problem: Asylum isn't the only kind of legal status that child migrants are currently eligible for. Many of them would be eligible for Special Immigrant Juvenile Status — a special status, which allows a very rapid path to a green card, for children who can't be returned to their families because of "abuse, abandonment, or neglect."
So if the government wanted to block every option for legal status child migrants have, they'd have to change the way Special Immigrant Juvenile Status is given out.
The problem: Setting federal standards for "abuse, abandonment or neglect" is difficult, because that ruling is made by a judge in family court — which is operated by state governments.
Short of pressuring border states to influence judges' rulings, the only thing the federal government could do would be for Congress to repeal the law it passed in 2008, which expanded Special Immigrant Juvenile Status to anyone who can't be reunited with parents, and go back to the old standard of qualifying for "long-term foster care."
5) Declaring Central Americans to be "economic migrants"
The proposal: The paradox of asylum is that you're not allowed to want it too much. Any affirmative reason to come to the United States in particular — what experts call a "pull factor" — is treated with suspicion.
As policymakers are talking about why so many unaccompanied children are coming over the border, that's the subtext: are they really just fleeing gang violence, or are they also taking advantage of the asylum system to get legal status in the US?
How generous the government is in giving asylum depends on the answer to that question. In the 1980s, according to historian Carl Bon Tempo, the Reagan administration granted asylum to dissidents who were fighting back against Communist regimes in Eastern Europe and Latin America — but not to opponents of US-backed governments in countries like El Salvador. The reason, the administration said,was that the Salvadoran immigrants were really "economic migrants" — they were coming for economic opportunities in the US, not because they were politically persecuted back home.
Similarly, the Obama administration could just declare that all migrants from Central America, regardless of age, are "economic migrants." This would clarify the debate, and give the United States a reason not to grant asylum to child migrants without having to accuse them of fraud. Like setting stricter rules for gang-related asylum claims, it wouldn't eliminate asylum claims entirely — but it could cut down on processing time. And it would "send a message" that future claims wouldn't work.
The problem: America has an ugly history of using "economic migrant" as a way to discriminate against people from particular countries. In addition to the Reagan administration's discrimination against victims of US-backed regimes, America spent several decades treating immigrants arriving from Cuba as refugees, and immigrants arriving from Haiti as "economic migrants" — a distinction so unfair that the Congressional Black Caucus ultimately had to sue the government to allow Haitians to pursue legal status in the US.
Furthermore, says Dzubow, just because there are benefits for someone in coming to the US doesn't mean they're not persecuted in their home countries. "We've decided that certain types of behavior by other countries is unacceptable and we, as a nation, have made a decision that we're going to protect people who are being persecuted or killed for those reasons."
"Of course by offering humanitarian benefits for people, you're creating a magnet for people to escape violent situations. But that's kind of the point of asylum."