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Battle Over Legal Rights of Children at US Border Intensifies. By Roger Algase

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By way of an update to my July 15 post, The Hill reported that same day that the two parties in Congress are divided over whether to change the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA), which now requires hearings before an immigration judge for unaccompanied children ariving at the US border from Central America and everywhere else in the world except Mexico and Canada before they can be sent back. See Divide deepens on border crisis fix, July 15)

The Republicans, in what might well be called reverse immigration reform, want to change the law to make the contiguous country exception to the immigration court hearing requirement applicable to children from all countries, in order to make it easier to send the children back to gang-infested countries such as El Salvador, Guatemala and Honduras (where the murder capital of the world is located) without giving the children a chance to have their claims for asylum or other relief heard by a judge.

However, proponents of changing the TVPRA to make the contiguous country exception applicable worldwide may not realize that even under that exception, the children involved still have certain rights which are being honored mainly in the breach, rather than being respected by the Obama administration, as I contend in my July 16 Financial Times letter: The biggest shame is denying children their basic rights.

(Sorry, the link to that letter does not seem to work. The letter can easily be accessed through a Google search.)

TVPRA Section 235(a)(2)(A) provides as follows:

"DETERMINATIONS.---Any unaccompanied alien child who is a national or habitual resident of a country that is contiguous with the United States shall be treated in accordance with subparagraph (B) [RETURN], if the Secretary of Homeland Security determines, on a case-by-case basis, that -

...

(ii) such child does not have a fear of returning to the child's nationality or of last habitual residence owing to a credible fear of persecution; and

(iii) the child is able to make an independent decision to withdraw the child's application for admission to the United States."

(Italics added.)

Nothing in the above statutory language gives Border Patrol agents authority to send back to Mexico (or Canada, or Russia, if one follows Sarah Palin's geography) summarily, as is reportedly the current practice and as the public is being led to believe is justified under the law.

No one could seriously claim that CBP officers have the expertise to determine asylum claims. At the very least, these would require review by a trained asylum officer. How many of these are currently at the Mexican border?

And what kind of training do CBP officers have in determining whether children who cannot speak English and in some cases are too young to talk at all are "able to make an independent decision" to withdraw their applications for admission to the US?

If the above contiguous country provisions are read in the light of the due process clause, there is at least a reasonable argument that they require not just asylum officer interviews, but full court hearings with the right to counsel anyway.

Immigration opponents of the "kick 'em out and send 'em back" variety may think that they would win a big victory in the seemingly unlikely event that they could get the TVPRA changed in Congress, but maybe they should read the law first.





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Updated 07-16-2014 at 04:53 PM by ImmigrationLawBlogs

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