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Obama Deports Honduran Children - According To Law? By Roger Algase

Rating: 6 votes, 5.00 average.

An updated July 15 Reuters news item reports that on Monday (July 14) the US deported a group of Honduran women and children, including an 18 month old baby, to San Pedro Sula, Honduras, the city with the highest murder rate in the world. See U.S. Deports Honduran Children In First Flight Since Obama's Pledge.

One of the women deported said that after being caught at the border, U.S. officials treated them like "animals", holding them in rooms with as many as 50 people where some mothers had to sleep standing up holding children.
The Reuters report also said:

"So chaotic are the circumstances of the exodus that some of the children are not even correctly reunited with their parents, said Valdette Willeman, Director of the Center for Attention for Returned Migrants in Honduras.

'Many of the mothers are sometimes not even the real mothers of the children', she said."


This report raises a few interesting legal questions:

1) Were the arriving children at the US border properly screened to see which ones met the definition of unaccompanied children under the TVPRA (Trafficking Victims Protection Reauthorization Act) which anti-immigrant advocates would like to amend or repeal, but which is still the law of the land?

2) Were those children who did meet the above definition turned over to HHS for shelter under humane conditions as required by that law?

3) Were the above unaccompanied children (if any) afforded individual immigration court hearings as also required by the TVPRA before being deported?

4) If any children or their parents (assuming that they were indeed the children's real parents) signed withdrawals of applications for admission, did they do so in full knowledge of the significance of the meaning of what they were doing and based on knowledge of their rights under the asylum for other laws granting relief from deportation?

Under the TVPRA, even unaccompanied children from Mexico, who are not given the protection of a deportation hearing before a judge, cannot be forced to signed a withdrawal without understanding what it means. (This denial of the right to an immigration court hearing also applies to unaccompanied children arriving at the Canadian border - Congress was no doubt also concerned about preventing a possible influx of blonde, blue-eyed children from Scandinavia or other places arriving from our northern neighbor when the TVPRA was enacted in 2008).

5) Were the deported children (or adults) afforded due process of law, including the right to counsel, before being sent home, or were were they rushed out of the US without any legal protections for purely political reasons?

These questions are of concern not only to children arriving at the US border. They are of concern to everyone who deals with immigration law issues - whether they be unnecessary and incomprehensible RFE's, or unjustified denials, in USCIS employment-based petitions; skewed interpretations of US Labor Department regulations in BALCA decisions, unreasonable delays or errors in processing or deciding family-based cases, or egregious abuses of fundamental civil and due process rights such as a "fraud" determination made in an I-140 case by an evidently unsupervised USCIS examiner without prior notice, opportunity to respond, or any factual basis whatsoever, which I have described in previous posts and will be updating in a forthcoming one.

All of us who are involved with any aspect of immigrant rights should be concerned about the fate of the thousands of Central American children arriving at the US border hoping to escape violence and terror in their home countries.

Up to now, it is the anti-immigrant side that has been accusing Barack Obama of running an "imperial presidency" without regard for the law. However, if it turns out that this administration is now starting to send Central American children home without regard for the TVPRA and the underlying Constitutional principles which that law is intended to enforce, than it may be the pro-immigrant side that needs to worry about the specter of a lawless presidency, bound only by the rule of expediency.






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Updated 07-15-2014 at 10:24 AM by ImmigrationLawBlogs

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Comments

  1. Nolan Rappaport's Avatar
    We can complain and try to push the Administration into doing the "right" thing for every unaccompanied alien child, but I'm not sure it is possible. Our immigration judges were overwhelmed with work before the surge in unaccompanied alien children, and this situation will make their case loads even worse. This is taken from my article on the unaccompanied children.

    President Obama?s request for supplemental appropriations only would provide funding to hire 40 additional immigration judge teams. The request asserts that these additional resources, when combined with the FY 2015 Budget request for 35 additional teams, would provide sufficient capacity to process an additional 55,000 to 75,000 cases annually. It would take a substantial amount of time to hire and train the immigration judges and their teams, and it may be difficult to find enough qualified attorneys who want to be immigration judges. In any case, the increase would not be sufficient even to bring current backlogs under control. Section 3501 of the Senate immigration reform bill, the Border Security, Economic Opportunity, and Immigration Modernization Act, S744, would require the Attorney General to increase the number of immigration judges by at least 225 judges. As of March 2014, the immigration courts had a backlog of 366,758 cases.xvi The average waiting time for a hearing as of that date was 580 days.

    I propose an alternative in that article that I think both parties could accept and would be in the best interest of the children. see http://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2014/07/10/nolan-rappaport-is-there-a-better-way.aspx I keep telling people about it because I haven't heard any other ideas that I think might work.
  2. ImmigrationLawBlogs's Avatar
    I would like to read Nolan. Rappaport's article in full. Unfortunately, my browser(s) will only let me access part of the article. Maybe it is problem with the server. I can never figure these things out.

    Mr. Rappaport, if you would like to send me the full article as an email attachment, my email address is algaselex@gmail.com

    Not having access to the full article, it would be unfair and inappropriate for me to comment on it, except to say that if it advocates kicking the can down the road to the UN, rather than affording these children the rights guaranteed by our laws and Constitution, I would not be able to agree.

    There is an old French saying: J'y suis et j'y reste. ("I am here and I am staying").

    Based on our asylum laws and the country conditions in the three murderous gang-infested Central-American countries most involved, this motto may apply to tens of thousands of children seeking refuge in the US, if, as Americans, we show the courage and compassion to follow our own laws.

    As for the money, instead of throwing away $46 billion on high tech border drones in order to line the pockets of defense contractors who may have lower profits as a result of ending America's involvement in Iraq and Afghanistan (see S.744) why not open our hearts and wallets as a nation in order to afford these kids their human, Constitutional, and statutory rights according to our laws and our deepest values?

    Roger Algase
    Attorney at Law
    Updated 07-15-2014 at 07:43 PM by ImmigrationLawBlogs
  3. Nolan Rappaport's Avatar
    I am not sure what you mean by kick the can. I am suggesting moving the kids out of the country to a safe location where UNHCR can process them as refugee applicants. They are more likely to get refugee status than they are to get asylum if they stay here. And once they have asylum, President Obama can bring them back using extra numbers he can get by declaring a humanitarian crisis. It's all explained in my article. The alternative is to keep them here for removal hearings. Most of them will not be able to establish eligibility for asylum. They will have their hearing and then be deported back to their home countries. In other words, kids who could have been saved by getting refugee status will die when they are deported back to their homes in Central America.
  4. Nolan Rappaport's Avatar
    I meant, once they have refugee status, not asylum.
  5. federale86's Avatar
    Illegals arrested at the border do not sign withdrawls of applications for admission, Form I-275.
  6. federale86's Avatar
    There is an exception where it can be suspended. In any event, the President can suspend the enforcement of any immigration law.
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