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Refugee Children Deserve Humane Treatment and Legal Process Pt. 2, by Roger Algase

Rating: 3 votes, 5.00 average.

Nolan Rappaport, a former Immigration Counsel on the House Judiciary Committee who is a highly respected expert in immigration law, has come out with a proposal for dealing with the child refugee crisis at the US border through the United Nations. This proposal, dated July 14, 2014 deserves serious consideration. It is entitled: Meeting the Challenge of Unaccompanied Alien Children at the Southwest Border: Is There a Better Way?

I will provide a link in my next post.

Nolan has also been kind enough to share his insights with me in a number of personal communications, which I also greatly appreciate. The following comments, which are based entirely on a published article of his, are critical in some aspects. But they are offered in the spirit of great respect to a colleague who is an unquestioned and highly regarded authority on immigration law.

Nolan's proposal has both strengths and weaknesses from the perspective of seeking a fair, just and realistic solution, based on the best interests of the children, something that is paramount according to the 2008 Trafficking Protection Reauthorization Act (TVPRA), which is the alpha (though in the opinion of some, not necessarily the omega) of dealing with this situation.

The strengths and weaknesses of his article are apparent in its very first sentence:

"According to Homeland Security Committee Chairman Michael McCaul (R-TX), we are facing and escalating refugee and national security crisis in Texas."

Refugee crisis, yes. But national security crisis? What exactly is the danger posed by innocent, vulnerable unaccompanied children, hundreds of whom are reportedly 2 years old or under, to America's national security?

Are the children smuggling weapons or drugs in their diapers? Perhaps Rep. Steve King (R-IA), who calls Dreamers "drug mules", might think so. But no rational observer would.

The Huffington Post is currently running a video (The Republicans have some horrifying theories about children crossing the border) made up of highly reprehensible and irresponsible accusations by Michele Bachmann and assorted other right wing Congressional extremists to the effect that the children at the US border are bringing in various diseases, drugs, weapons, and "Eastern cults" (in a nation where freedom of religion is part of our Constitution), and that they are "invaders" and "terrorists" who are importing a culture of murder and gang violence into America.

While I do not by any means attribute this kind of hate, which is reminiscent of the vile anti-Semitic, anti-Italian and other attacks against and Eastern European and Asian immigrants in the first half of the 20th century and latter half of the 19th, not to mention the rantings of the Southern segregationist leading up to the Civil Rights era, to more than a small percentage of the people who want to keep these children out, it would be naive to pretend that this kind of bigotry is entirely absent from the controversy over how to treat these child refugees.

Why begin what is obviously meant to be an objective and fair proposal by citing a statement that combines, to quote the title of Johann Wolfgang von Goethe's autobiographical work, Dichtung und Wahrheit - Truth and Fiction?

However, given that the above is Congressman McCaul's statement, not Nolan's, and that merely quoting the statement is not the same as endorsing it, I will move on to the substance of Nolan's proposal without further ado, except to say that it is important to distinguish between reality and blatant anti-immigrant demagoguery when discussing this issue. This is not always so easy to do, no matter how serious and well meant one's views may be, because the two are so closely intertwined in many of the media reports about what can only be called the humanitarian and human rights crisis at the border.

Nolan discusses the admitted dangers of the trip that these children make northward to reach the US border, something that no one can argue with. He also describes the efforts of the Obama administration to discourage this travel, though it is not clear whether the paramount motivation for this is the safety of the children or the safety of President Obama's political standing. Doubtless both are involved.

Nolan also quotes in full the Spanish langiage "open" letter (English translation) that DHS Secretary Jeh C. Johnson has issued to the parents of the Central American children fleeing mainly gang-related violence in three countries with among the highest homicide rates in the world.

The letter ends by warning that "permisos' for staying in the US do not exist, so that the admittedly long and dangerous trip will in all probability be in vain. It is true that "permisos" in the sense of a free pass to stay in the US, do not exist. But access to our justice system, in the sense of the right to a fair hearing before an immigration judge on legitimate asylum claims which, according to a UNHCR report to be discussed in my next post, a large percentage of these children may have, does exist, according to the plain language of the TVPRA.

Curiously, the right to an asylum hearing before a judge is not mentioned in Secretary Johnson's letter. Maybe it was too difficult to translate into Spanish.

Nolan then turns to the source of the above rights to a full and fair hearing on asylum claims (or other forms of relief from deportation which may be available). As mentioned above, this means the TVPRA. He states:

"TVPRA was not intended to apply to this kind of situation. When former President George W. Bush signed it into law on December 23, 2008 [i.e. in the final days of his presidency] he stated that it was intended to enhance measures to combat human trafficking. It is vey unlikely that it would be used to require removal hearings for more than 50,000 unaccompanied alien children before returning them to their native countries."

This comment raises issues of principles of statutory interpretation, something about which lawyers and judges can often disagree. Therefore, I will mention the principle of statutory interpretation which I was taught while a student at Harvard Law School more than 50 years ago. This principle was quite simple: Read the Statute.

Admittedly, it may now seem somewhat quaint and old-fashioned. I do not remember learning anything about relying on a presidential signing statement in order to interpret a law, but of course, that was long before the latest Iraq war.

For anyone who still believes in the above antique method of statutory interpretation, the meaning of the TVPRA, especially Section 235, is clear. Nolan himself summarizes it quite accurately, stating that the law:

"has made it more difficult to repatriate unaccompanied minors without a formal removal hearing before an immigration judge."

He also provides a chart showing the exact steps that are required to comply with the TVPRA.

Nolan also mentions that President Obama wants to amend TVPRA to be able to send the children home more easily, as is allegedly the law regarding children from Mexico (not to mention all of the blond, blue-eyed children who Congress evidently expected to come in as refugees from Scandinavia through the Canadian border).

But, at least as long as Democrats control the Senate, the chances of amending TVPRA are exactly zero. Nolan, clearly, is among those who would like to see the TVPRA amended so that the children would be denied full court hearings. He argues that this process is too unwieldy because it takes too long, there are not enough immigration judges, and the money to carry out this law is not available. But does this mean that the law should be thrown out, or that it more efforts should be made to carry it out in good faith?

Nolan also argues that most asylum claims by Central American children based on fear of gang violence would fail in immigration court anyway, citing BIA cases holding that these children do not constitute a "social group", as required by US (and international) asylum law. The latest of these decisions is from 2008; the earliest is from 1987.

In my July 21 post, I discussed a BIA decision from February 2014, which "clarifies" these earlier decisions, and back away from this rigid view. While the law is still admittedly evolving on this issue, the decisions that Nolan cites are no longer the latest statements of the law concerning this question.

Moreover, if the children are given the full right to counsel which is obviously contemplated by the TVPRA, and which is arguably required by due process, as the US Supreme Court held in the landmark juvenile court case of Matter of Gault back in 1967, we might very well find that the law of asylum in gang violence related cases will develop quite a bit faster than Nolan evidently anticipates.

Is it precisely because so many of these children do in fact have legally valid asylum claims that the Obama administration is so anxious to rush them out of the country in a travesty that can only be called kangaroo procedures, without access to lawyers, as described in former Board of Immigration Appeals member Lory Rosenberg's shocking report mentioned in Matt Kolken's July 21 blogging?

But not to worry, even if these children do have legal rights to stay in the US for a greater or lesser period of time, Nolan argues that there is an alternative to letting them stay here which would still be in their best interests. This is an important carefully thought out, proposal, worthy of the most serious consideration, and with which I respectfully disagree. It will be the subject of my next post.




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Updated 07-22-2014 at 08:53 PM by ImmigrationLawBlogs

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  1. Nolan Rappaport's Avatar
    First, I want to thank Roger for discussing my recent article on the unaccompanied alien children crisis, "Is There A Better Way? - Meeting the Challenge of Unaccompanied Alien Children at the Southwest Border,"
    http://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2014/07/10/nolan-rappaport-is-there-a-better- way.aspx I particularly appreciate his efforts to be fair and objective in describing an article that I know he disagrees with. We have sent emails back and forth on every aspect of my article.

    When I write articles for ILW.com and Lexis.Nexis, I try not to take sides although I don't always succeed. I make an effort to show how the issue is viewed by both sides without criticizing or praising either. My objective is to present possible solutions, not to advocate a position, and you need to understand how the issue is viewed by both sides to do that.

    One of the lessons I learned as a Judiciary council is that in congressional negotiations, it never matters who is right and who is wrong. You can't expect a Congressman to accept a position that will antagonize his constituents, no matter what he might think about the position. You can't accomplish anything as a congressman if you alienate your constituents and they vote you out of office. If you want to solve a problem, you have to find a solution that acceptable politically to both sides. I have tried to find such a solution for the unaccompanied alien children crisis.
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