As Congress considers how to address the child and family migrant crisis, many members of both parties have called for a change to a 2008 law — to take the quick and restrictive process that's currently used for unaccompanied children coming from Mexico, and use it for children from Central America as well. Many members of Congress in both parties have expressed support for the idea, and Sen. John Cornyn (R-TX) and Rep. Henry Cuellar (D-TX) are expected to introduce a bill to make the change soon. The Obama administration has also indicated support for this idea.
Here's what that would mean:
Children will have a single interview, with a Border Patrol agent, to prove they're afraid of persecution. Children would have one chance to persuade the government that they are afraid of persecution or trafficking: at the Border Patrol station, in an interview with a Border Patrol agent, right after they're apprehended.
"It's targeting unaccompanied children who will be standing there alone," says Wendy Young of Kids in Need of Defense (KIND), a group that advocates for unaccompanied migrant children."Four-year-olds, standing before a Border Patrol station, trying to articulate a fear of persecution or a fear of trafficking. It's patently absurd to think the kids, in these circumstances, can successfully navigate that kind of screening."
If they do navigate it successfully, they'll be put into the existing process: they'll be able to speak with an asylum officer or be put into immigration court proceedings, to determine officially if they qualify for legal status.
If they don't pass that interview, they'll be immediately sent back. If children can't persuade the Border Patrol agent that they'll be persecuted or trafficked, they'll be immediately returned to their home countries — not formally deported, but immediately sent back.
This might just apply to kids who are caught crossing the border in the future. What's still not clear is whether this new process is only going to be used for children who cross the border in the future, or whether it's also going to apply to the tens of thousands of children already in government custody. Young thinks that the administration is just trying to change the law for the future, rather than forcing Border Patrol agents to conduct mass screenings of all the children currently in their care. But without seeing the proposed bill, she can't be sure.
There's a slim chance there will be legal services provided to kids for their Border Patrol interviews — but it's unlikely. The administration has asked Congress to approve $3.7 billion in emergency funding for the migrant crisis, and that includes $15 million for "legal representation" for children. But Young doesn't know whether those legal services are for the Border Patrol screenings, or just for the children who make it through the Border Patrol interview and get into immigration court.
"I would hope, if you're going to be doing these screenings, at least make sure that the lawyer is standing by the side of the child," she says. But again, without seeing the bill itself, it's difficult to tell.
It's an appropriate response for an immigration crisis, not a refugee crisis. Here's the upshot of the proposed bill: the laws on the books say that when unaccompanied children come across the border from Central America, the government's top priority should be making sure that they get due process in immigration court, and are able to live with family members while their cases are processed. Much of Congress and the Obama administration now believe that the government's top priority should be swiftly returning a child to his or her home country if it's not immediately clear that he or she deserves legal status here.
That means many policymakers see this as an immigration crisis — children coming to the United States because they can, for economic opportunity, family reunification, or to game the system. If that's the case, a crackdown will (in theory) deter families from sending their children, because the odds would no longer be in their favor.
It means they don't see it as a refugee crisis — children will now be assumed not to be in danger unless they can prove otherwise. But if families are currently sending children because they're genuinely convinced the children are in mortal danger, a crackdown won't have as much of a deterrent effect.
Just because a child can't immediately make it clear to a Border Patrol officer that he or she qualifies for legal status doesn't mean that he or she can't. So it's virtually certain that — if Congress agrees to change the law — children will be returned to their home countries who, had they arrived in the US last year, would ultimately have been given legal status on humanitarian grounds.