After much debate, the House finally rolled out its version of a supplemental appropriations bill to deal with the surge of unaccompanied children (UAC) entering the United States. The bill would treat Mexican and Central American UAC equally under the law - meaning they all would have fewer due process protections than many adults.
1. Interviews: The bill would treat Central Americans the same as how Mexican children are already treated. But Mexican children are subject to fewer due process protections than adults in two ways. First, apprehended adults are interviewed by asylum officers who are trained in country-conditions and asylum law. Under current law, Mexican children are interviewed by Border Patrol agents who are untrained in this area. In one case, a United Nations report found that a Border Patrol agent believed that a child who had expressed a fear of being trafficked had to be returned “because the paperwork was already filled out.” Children are also expected to describe their fears of persecution and descriptions of traumatic and violent experiences to a gun-carrying law enforcement agent, which in many cases is an unreasonable request. In fact, a 2011 study by the Appleseed Foundation concluded that “no meaningful screening is being conducted” by Border Patrol.
2. Appeals: Second, under current law, adult asylum seekers can appeal a determination by an asylum officer that they lack a “credible” asylum claim to an immigration judge (IJ). The IJ can reverse the decision. Mexican children cannot appeal the decision of a border agent – they are simply summarily removed from the United States. This bill would treat Central American children in the same way, denying them an appeal. The importance of these provisions was recently highlighted by the case of a Honduran girl who was accidentally deported to Mexico. The United Nations found that border agents are requiring children to “prove they are being persecuted or trafficked” on the spot despite the fact that they are supposed to simply screen out those without any claim at all. IJs mitigate that problem.
3. Expedited Hearings: The bill would require a hearing on the case within seven days. There is virtually no way to conduct an asylum hearing within seven days. The applicant must find an attorney, compile the evidence, locate witnesses, and fulfill other requirements. “Accelerated and truncated hearings force children to navigate the hurdles and the complexities of our immigration system in an unreasonably short timeframe,” concludes the American Immigration Lawyers Association. “Children cannot be expected to present a claim in mere days.” A mere declaration that a hearing must be held in seven days will not make it so.
4. Determinations: After this hearing, the IJ would have to determine within three days whether it is “likely” that the child will be granted admission to the United States. There’s just one problem: most benefits under immigration law are not adjudicated by IJs, but by officers at U.S. Citizenship and Immigration Services (USCIS). Currently, if an adult claims eligibility for a visa during a removal proceeding, the IJ determines if they have shown prima facie eligibility and will be given a stay of removal to allow for them to apply to USCIS. This bill requires the IJ to make a determination that they are simply incapable of making.
Strangely, the bill includes procedures for screening by an asylum officer after the IJ concludes that the child is unlikely to be admitted. If the asylum officer concludes that the child lacks a credible asylum claim, he or she can appeal to an IJ (possibly the same IJ that rejected them, which is confusing). But these additional processes only occur after the limited process described above.
The problems this bill is attempting to fix could be rectified in other ways. No matter what one thinks of the bill’s intent, it could be maintained without giving children fewer due process protections than adults. The asylum system needs reform but it should not disregard the important processes intended to protect migrants from being returned to violent conditions that could threaten their lives.