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The process Congress wants to use for child migrants is a disaster

A Mexican child looks through the border fence.
A Mexican child looks through the border fence.
John Moore/Getty

Congress and the Obama administration are scrambling to respond to the humanitarian crisis of 57,000 unaccompanied Central American children who've crossed the border into the US this year.

One policy change that Republicans are expected to demand (in order to give the Obama administration the $3.7 billion in emergency funding it's asked for) has actually gotten the support of members of Congress from both parties, and encouraging hints from the White House. That change: updating a 2008 law so that Central American children could be returned to their home countries as quickly as Mexican children are today.

But a secret UN report obtained by Vox paints a very disturbing picture: the current process is totally failing to protect Mexican children from harm. Children who have reason to fear for their lives, or who are victims of human trafficking, are almost certainly being sent back into danger.

And now Congress wants to use the process that's already failing to identify which Mexican children are being victimized, and expand it to Central American children fleeing the most dangerous places on earth.

Here's what you need to know.

Mexican children are treated differently than Central American children at the border

The process for unaccompanied Central American children who cross the border — and for any other child who isn't coming from Mexico or Canada — has been the same for decades. After being apprehended at the border and processed, they're turned over to another Health and Human Services. (Prior to 2002, they were turned over to another branch of the Immigration and Naturalization Service, which is now defunct.) After that, children are either released to a responsible relative or given long-term housing and care while working through immigration court proceedings. (See more about the process here.)

But that's not how children are treated if they come from "contiguous countries": Canada or Mexico. Before 2008, a child from Mexico apprehended at the border would just be turned right around and sent back — the same way an adult immigrant would be.

That meant there was no protection for children in danger back home. Worse, it meant that child victims of human trafficking — children who were being taken into the US not by choice, but to be exploited for labor or forced into prostitution— were getting shipped right back to the traffickers to try again.


A group of Guatemalan teenage girls after their rescue from traffickers. Johan Ordonez/AFP

In 2008, Congress passed a new law called the William Wilberforce Trafficking Victims Protection and Reauthorization Act, or the TVPRA. One of the provisions of that law attempted to close the loophole for Mexican children. To do that, Congress came up with a new, relatively quick screening process for children from contiguous countries, designed to make sure no children were being sent back to danger.

Wendy Young of Kids in Need of Defense (KIND), an advocacy and support organization for unaccompanied immigrant children, calls the TVPRA screening system a "compromise." It wasn't at all controversial at the time, she says — "nobody really talked about it."

Now, Congress and the administration agree that it's important to respond to the current crisis by sending back tens of thousands of Central American children — as quickly as possible. And that would require changing the TVPRA to expand the current screening system to Central American kids in addition to Mexican ones.

How a Border Patrol agent screens a Mexican child

Under current law, a Border Patrol agent is responsible for interviewing a Mexican child after apprehending her. The Border Patrol agent is only allowed to send the child back to Mexico after the interview if:

  • the child isn't afraid of going back to her home country because she'd be persecuted;
  • the child isn't a victim of human trafficking;
  • the child won't be at risk of human trafficking after being sent back;
  • the child is capable of making her own decision to return to Mexico.

If the Border Patrol agent isn't sure that all four of these conditions are met, the child gets sent into full immigration proceedings and long-term care — just like children from any other country.


Children sleep at the Nogales detention center in Arizona. Ross D. Franklin/Getty

The screening process isn't working to protect Mexican kids

But a secret UN report shows that the screening process, as it works now, simply fails to protect Mexican children.

In June 2014, the government allowed the UN Office of the High Commissioner for Refugees to review Border Patrol's screening of Mexican kids. The review was confidential, and UNHCR refuses to comment on it publicly or privately. But Vox obtained a copy of the final report that UNHCR submitted to the Department of Homeland Security.

The secret report concludes that the system is biased against Mexican children — and that Border Patrol shouldn't be in the business of figuring out whether or not children should be sent home at all.

The way the law is written, any Mexican child should be presumed to be in danger until proven to be safe by the screening process. But UNHCR found that in practice, Border Patrol agents are assuming that children are not in danger until proven otherwise. The way agents are actually implementing the screenings puts the burden on the children to prove they are being persecuted or trafficked. According to the report, "in all sectors (of the border) visited, CBP communicated to UNHCR that Mexican unaccompanied alien children are always returned to Mexico."

Border Patrol agents simply don't understand what to look for or how to help

It's not that Border Patrol agents aren't sympathetic to the plight of Mexican children — indeed, they're personally very kind to the children in their care. But the secret report shows that Border Patrol agents simply don't know what to look for to figure out if a child is being victimized, or what to do if he or she is.

In one anecdote, an agent was driving a teenage girl back to Mexico when she told him she was worried the cartel in her town would force her into prostitution when she got back. In other words, she expressed a fear of trafficking — one of the things that, under the 2008 law, is supposed to qualify her for a full hearing. But the agent thought that because they'd already filled out her paperwork, there was nothing he could do.

Screening interviews "focus on producing quick answers rather than substantive ones"

Most of the time, though, agents never get a chance to find out about the threats facing children. "In general," the UNHCR report says, "CBP's style of interviewing Mexican unaccompanied alien children seemed to focus on producing quick answers rather than substantive ones." Agents usually conducted interviews in an open room — with other interviews happening all around, and plenty of adults, children and other officers watching — even though private rooms were available. That means that trafficking victims could have been interviewed while their traffickers were just feet away.

Often, agents read questions off a form in a flat voice — not even pausing to make sure children understood. And when agents couldn't speak Spanish well enough for the interview, some just conducted it in English with hand gestures. One agent even typed the questions from the form into Google Translate, and then read the questions off the screen, never making eye contact with the child.

"In the cases observed" by UNHCR researchers, the report says, "the entire interview" — including two separate forms — "took approximately ten minutes."

The screening happens so quickly that most children don't even understand what's happening. UNHCR researchers interviewed several Mexican children from each sector of the border as they were being returned to Mexico. At the Rio Grande Valley sector — the one that Central American kids are coming into today — "only one of the five Mexican unaccompanied alien children interviewed there said he was asked if he was afraid to return."


A child looks through the US/Mexico border fence. John Moore/Getty

Traffickers are now forcing Mexican children to work for them because they know children will be sent back

Multiple sources have confirmed to Vox that at least one group really has taken advantage of the 2008 law: cartels and criminal gangs engaged in human and drug trafficking. As a separate, public UN report found earlier this year:

"Mexican children — precisely because of their age and vulnerability — are frequently recruited by criminal rings and other adults to work as human smuggling guides, because if caught, they are typically returned to Mexico without delay. These factors led to the result that 39 — almost half — of the 84 Mexican children interviewed while in the custody of the Border Patrol in South Texas were involved in the human smuggling industry."

According to the secret UNHCR report, Border Patrol agents are frustrated that they keep having to send children back to Mexico even when they know they're involved in criminal activity. But all the agents UNHCR interviewed assumed that the children had chosen to get into smuggling — when in fact, the report points out, it's likely that at least some children were being coerced into working for the cartels, and therefore were victims of human trafficking themselves. Border Patrol agents weren't asking children if they were working voluntarily or looking for any indications that the child was afraid to go back.

Even children who aren't already working for traffickers are ripe targets for them once they're sent back to their home countries, says Young. Smugglers might be sending children right into the arms of Border Patrol, but traffickers "are very adept and savvy at getting across the border without detection," she says. "And then those kids are sold into labor or sex work."

51419541 Young migrant children in Chiapas. Janet Schwartz/AFP

It's not that Central American kids need to be protected less; it's that Mexican kids need to be protected more

The first of UNHCR's confidential recommendations to the federal government: stop putting Border Patrol agents in charge of figuring out which kids get to stay. Instead, UNHCR recommends that all unaccompanied children apprehended by Border Patrol should automatically be turned over to HHS custody — no matter where they come from. Then, Mexican children can be interviewed by a child-welfare professional who knows what to look for in figuring out if a child is being trafficked or persecuted.

That's not nearly as lengthy a process as the one that children from non-contiguous countries go through now — Mexican children who didn't pass the screening interview would still be sent back to Mexico, rather than going through with a court hearing. But it's substantially more involved than the process Mexican children go through now.

But Congress and the administration are looking for ways to deport children more quickly, not less. It's generally assumed that if Central American children were put through the expedited screening that Mexican children go through, the overwhelming majority of them wouldn't pass — and would get sent back.


Pictures of trafficking victims in Mexico City. Fernando Castillo/LatinContent

Giving Border Patrol more work to do would probably make screenings even less effective

Everyone agrees that the current crisis is overloading Border Patrol agents, and agents themselves are concerned that the amount of time they're spending processing children is taking away from their ability to fight crime.

Congress' proposal would certainly save Border Patrol agents the time they currently spend supervising Central American children who are waiting to be sent into long-term care — because only a few children would get to stay that long. But it would give them a lot more work to do in terms of conducting screenings. Right now, Border Patrol agents are apprehending about 46 Mexican kids a day — and those are the only ones they're responsible for fully processing and returning. If they had to interview and process Central American children as well, they'd have to deal with 211 children a day.

This means that, if anything, screenings would get even hastier and more careless. If Border Patrol agents are taking only ten minutes to interview children now, how long would they take when if there were more than four times as many children to interview? It would also give Border Patrol agents another big task to complete that has nothing to do with monitoring activity at the border — which, Border Patrol agents emphasize, is the core of their job.

Democrats in Congress, Republicans in Congress, and the administration agree that the federal government should respond to the current crisis by deporting tens of thousands of children. And changing the 2008 law to expand the Border Patrol screening process to Central American children is the way that many in Congress have seized on to do it. If that really is the only immigration bill Congress manages to pass this year, the evidence indicates that it will certainly work as intended: most, if not all, children will be sent home.

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