Battle Over 2008 Law Conceals Real Border Fix, Says Report

Neil Munro White House Correspondent
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President Barack Obama has conned GOP legislators and the media into blaming a 2008 anti-trafficking law for his failure to block the growing wave of migrants now crossing the Texas border, according to a new legal analysis by the Center for Immigration Studies.

The 2008 law does’t limit Obama’s ability to block the wave of families, working-age youths and children, says the new report.

The juvenile illegal immigrants are voluntarily crossing the border to find jobs and live with parents already in the United States, and so they aren’t covered by the 2008 anti-trafficking law, said Jon Feere, a legal analyst at the Center for Immigration Studies (CIS), which supports a reduction in the annual inflow of 1 million immigrants and 800,000 guest-workers.

The debate over changing the law “should not become a distraction from addressing the bigger problem of lax enforcement [by the administration]… which continues to encourage people to come to the United States illegally,” he said.

Senate and House Republicans are now trying to draft changes to the 2008 law that would allow border officials to quickly repatriate border-crossing youths.

“You’ve got to change the human trafficking law so that we’re not resettling people within the interior of the country, because all that does is create the incentive for more to come,” Rep. Paul Ryan told National Review Tuesday.

Top Democrats, including Senate Majority Leader Harry Reid, say they oppose those changes.

That’s causing a high-profile fight which is distracting media attention from Obama, who is being blamed by the public for the border meltdown, according to several polls.

That three-year inflow is expected to reach 120,000 youths and 150,000 family members by October.

Obama and his aides have tried to shift the blame to the 2008 law.

For example, Obama has said he needs revisions to block the post-2011 inflow. “I am writing to … request that the Congress [provide] the [Department of Homeland Security] Secretary additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador,” said Obama’s letter.

The law, dubbed the “William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,” was intended to help “unaccompanied alien children” who were victims of forcible trafficking, usually for purposes of prostitution or underage labor.

Administration officials insist that the law requires them to let border-crossing juveniles stay in the country and file legal claims asking for residency and green cards. The cases are expected to take years, during which the claimants can legally live, study and work in the United States, despite the nation’s high youth unemployment rate.

Critics say that the administration’s interpretation of the law is wrong, and is inviting more Central American juveniles to cross the border in search of work or family reunification.

The 2008 law doesn’t apply to the Central American migrants, said Feere.

Many of the juvenile migrants don’t match the federal definition of “unaccompanied alien children,” he said.

That’s because many of the youths have willing parents in the United States, according to federal reports.

Roughly half of the unaccompanied juveniles detained by the border agency have been transferred to the custody of a parent, according to a leaked federal report, even though many of the parents are living illegally in the United States.

“Of all discharged [unaccompanied children], 31.1 percent were discharged to the custody of their mothers, 17.2 percent were discharged to their fathers, and 14 percent were discharged to an adult sibling, 8.1 percent to an uncle [and] 5.9 percent to an an aunt,” according to the June 3, 2014 report by the analysis division of the U.S. Immigration and Customs Enforcement agency.

In addition, many media accounts show how Central American parents living illegally in the United States are using a relay of smugglers and federal agencies to transport their children to their homes in American cities.

There’s also little or no evidence that the border-crossing juveniles are being forcibly trafficked. Instead, they’re cooperating with smugglers to get themselves into the United States, Feere said.

Also, the 2008 law already grants the president flexibility in exceptional circumstances, such as the unprecedented rush for the border by Central American migrants, Feere said.

For example, the White House argues that the law requires officials to transfer juveniles from immigration agencies to the Department of Health and Human Services (HHS) within 72 hours. Once transferred, HHS hosts the juveniles while they file legal claims, and until they can be given to parents or guardians in the United States.

That’s a very different process than used to handle juveniles crossing from Mexico. With Mexican juveniles, border officers interview the youths to see if they have a plausible claim for asylum, and if not, they quickly repatriate them without any court hearing.

But the law gives officials the flexibility to treat Central Americans youths in the same way they treat Mexican youths.

“Except in the case of exceptional circumstances, any department of agency of the federal government that has an unaccompanied alien child in custody shall transfer the custody of such child to the secretary of Health ad Human Services not later than 72 hours after determining that such child is an unaccompanied alien child,” according to section 235 of the 2008 law.

Some Democrats acknowledge the flexibility in the law.

“That law already provides the administration with flexibility to accelerate the judicial process in times of crisis,” Democratic Sen. Dianne Feinstein, told The New York Times.

“The administration should use that flexibility to speed up the system while still treating these children humanely, with compassion and respect,” she said in the July 7 article, which is titled “Immigrant Surge Rooted in Law to Curb Child Trafficking.”

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