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The three things Congress can do about child migrants

Congresswoman Kay Granger is leading a House task force on child migrants.
Congresswoman Kay Granger is leading a House task force on child migrants.
Office of Congresswoman Kay Granger

Over the past week, the Obama administration has taken a series of steps to try to deal with the influx of children and families from Central America into the United States — including an enforcement "surge" and adding judges and caseworkers.

The next question is whether Congress will take any further action of its own. Right now, many House Republicans are calling on the Obama administration to deport the children as quickly as possible. But that's not really possible under existing asylum laws.

So that leaves three options: If Congress really wants to speed up the deportation of children, it will have to change existing asylum laws (which is likely to have all sorts of problems). Alternatively, Congress could provide more money to help the US government take care of the child and family immigrants who are already here (which would also speed up the deportation process). Or Congress could do nothing and stick with an unsatisfying status quo.

Here are the three options:

1) Congress could change asylum laws to allow for faster deportation

Under existing US asylum laws, it's not possible for the Obama administration to speed up the deportation of children crossing the border. Even many House Republicans acknowledge this fact (though some have called on Obama to simply bypass existing law).

If lawmakers wanted, they could change these laws — although doing so might fall afoul of international treaties. They'd have to do two separate things:

1) Undo a 2008 law and allow children to qualify for "expedited removal": Right now, only adult immigrants can go through "expedited removal" to get deported without going in front of an immigration judge — but a 2008 law prevents this process from applying to minors. Congress could revise that.

2) Make it harder for children to gain asylum: But lawmakers would have to take a second additional step. If an immigrant has reason to believe he or she is in danger if deported, he or she can't go through expedited removal. Instead, an asylum officer has to hear the case and determine whether the immigrant's fear is "credible." If so, the immigrant is guaranteed a trail and considered for asylum.

The principle behind the system is that anyone who has a chance of being granted asylum should get to present his or her case in full — so the standards for the preliminary interview are supposed to be lower than those for asylum itself. (House Republicans have complained that asylum officers are more likely to approve "credible fear" claims than they were in past years, and the administration has since tightened the rules.)

If Congress wanted to speed up the deportation process for children, it would likely have to make it harder for children to pass the preliminary interview. And if it wanted to deport more than half of the children who are currently here, it would have to make it harder to ultimately gain asylum (since the UN Office of the High Commissioner for Refugees has already estimated that about half the unaccompanied migrant children currently in the US qualify for some form of humanitarian relief). To deport more children and deport them more quickly, it would have to do both.

The problem here: Changing the law for people who have already entered the US, as explained here, would probably violate international standards. It would definitely have far-reaching implications for the future of asylum in the United States. And it would be a radical reaction to unaccompanied children fleeing violent countries.

2) Congress could provide more money to process child migrants (and speed up deportation for many of them)

Back in May, the Obama administration asked for $1.4 billion to improve the government's capacity to deal with unaccompanied child migrants. In June, a subcommittee of the Senate Appropriations Committee approved $1.9 billion just for the long-term care of unaccompanied children under the Department of Health and Human Services.

But that money is part of a bill that was pulled from the Senate floor, according to Senate staffers, and whose future is uncertain at best. Meanwhile, the House hasn't considered any extra money at all, except for a few million for Immigrations and Customs Enforcement to transport children from Border Patrol to custody of the Department of Health and Human Services.

The administration says it is trying to speed up the processing of children. Steps include reassigning immigration judges and asylum officers to the border to process the cases of children and families (making the backlogs even longer for everyone else waiting for a hearing in immigration court). But without more funding, it says, there isn't much more it can do.

So if Congress really wants the children who are already here processed quicker — so that those who are eligible for asylum or another status can be identified, and the rest deported — one option would be to give the administration more funds. This would make it easier to thoroughly consider children's cases, so that the children who qualify for asylum would be sure to get it — without waiting months or years.

3) Or Congress could do nothing

Without Congressional action, the system is simply stuck. The administration can't make the existing process go any faster because it doesn't have the money. And it can't change that process, because it can't change the law.

Still, the status quo seems most likely — even it will satisfy nobody.

That means that it won't be possible to process children's cases quickly — but it also won't be possible to ensure they get fair treatment and legal representation. It will be easier for children to disappear into the US after being released, instead of showing up for court — but it will also be harder for them to navigate the system to get the legal status they deserve.