Advocates defend law that guarantees most immigrant children a hearing

Sen. John Cornyn, right, and Rep. Henry Cuellar discuss the Helping Unaccompanied Minors and Alleviating National Emergency Act in Mission, Texas.
Sen. John Cornyn, right, and Rep. Henry Cuellar discuss the Helping Unaccompanied Minors and Alleviating National Emergency Act in Mission, Texas.
(Joel Martinez / Associated Press)

Several leading immigrant advocacy groups are warning against changes to a law that guarantees immigration hearings for most unaccompanied minors apprehended at the border.

President Obama and members of Congress from both parties have been pushing for an overhaul to the law, which they say is needed to expedite deportations and ease the humanitarian crisis along the nation’s southern frontier.

Opponents of the changes say they would strip vulnerable children of their right to due process, forcing many to return to potentially deadly conditions back home.


At issue is a 2008 law signed by President George W. Bush to combat human trafficking. Under the law, unaccompanied minors from Mexico and Canada who are apprehended at the border must be screened within 48 hours by federal agents and sent home immediately unless they have asylum claims or are victims of trafficking.

But the law is different for immigrant children from countries that don’t border the U.S.

Those children are turned over to the Department of Health and Human Services and given a hearing before an immigration judge, who determines whether they have cause to stay in the U.S. or should be deported. It can be a lengthy and resource-heavy process.

Most of the roughly 57,000 unaccompanied children who have been apprehended at the border since October are from Central American countries, and U.S. officials have struggled to house them and process their cases.

A bipartisan bill proposed last week would strip away the added protections for children arriving from non-contiguous countries, requiring Border Patrol agents to quickly assess the merits in every child’s case and make a determination as to whether they should be sent home or given the chance to appear in court. Any resulting immigration proceedings would be accelerated under the bill, with judges required to make a final decision in the children’s cases within seven days, much faster than is typical.

The bill’s sponsors, Sen. John Cornyn (R-Texas) and Rep. Henry Cuellar (D-Texas), say the changes would protect the rights of immigrant children and make the process more fair by treating them equally no matter their home country.

But immigrant advocates warn the changes could have drastic consequences.

Lindsay Toczylowski, an immigration attorney who is a part of a coalition of California-based legal service providers to come out against the changes this week, said Border Patrol agents lack the training to make critical decisions in complex asylum cases and that that seven days is an unrealistic timetable for court cases that can mean life or death.


“We will be asking kidnapping and child-rape victims to provide testimony and corroborating evidence in court about the single most horrifying thing that has ever happened to them within one week,” said Toczylowski, whose organization, Esperanza Immigrant Rights Project, provides legal services to immigrants who cannot afford it.

Judy London, an attorney at Public Counsel, another pro-bono law firm, cited the case of a teenage torture victim from Central America who did not share the details of her story with attorneys until four months after she crossed the border. The young woman would have been unlikely to share the story with a Border Patrol agent, London said. Under the proposed changes, the teenager “would have been returned to a horrible fate,” London said.

California Atty. Gen. Kamala Harris, who last week convened lawyers from across the state in an effort to connect unaccompanied minors with lawyers, said she also had doubts about changes to the anti-trafficking law. Harris, who was in Los Angeles to speak at the annual conference of the National Counsel of La Raza, said in an interview Tuesday that the law’s current protections are there for a reason.

“Anything that is meant to streamline a system for the sake of speed as opposed to the sake of justice and due process is something I cannot support,” Harris said.

Obama is pushing for an overhaul of the law in conjunction with a proposed $3.7-billion emergency spending bill to address the border issue. Most of the money would go to provide food, housing and medical care to thousands of young immigrants in custody at emergency detention sites as they await processing. Additional funding would be used to hire more immigration judges to clear backlogged dockets.

Mark Krikorian, executive director of the Center for Immigration Studies, which advocates for more restrictive immigration laws, said he believes Obama is wrong to blame the crisis at the border on the anti-trafficking law. Krikorian said the law has little applicability in the current situation because it was meant only to apply to children with no family in the United States and only to victims of human trafficking, as opposed to smuggling.


He said provisions in the law give Obama the power to limit its application without input from Congress. “I don’t think that Congress should be focusing on changing it because it simply confirms the president’s false narrative that his hands are tied and the border crisis is caused by this law,” Krikorian said.

Twitter: @katelinthicum