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Is Sending Children Home To Be Killed An Impeachable Offense? By Roger Algase

Rating: 2 votes, 5.00 average.

The following post, dated August 21 at 9:26 am, is a completely revised version of a comment which I posted earlier in the morning of the same day:

In my August 20 post I wrote about reports that the three Central American countries where most of the unaccompanied children seeking refuge in the US come from, Honduras, Guatemala and El Salvador, are largely unprepared to take back these children after they are deported (after what in some cases can only be called Kangaroo proceedings in which their lawyers are not even allowed into the detention center where the children are being held and where their hastily improvised "immigration court hearings" are taking place).

But, according to the Huffington Post, citing a Los Angeles Times report, the criminal gangs in these countries are not losing any time in killing deported children as soon as they return. See: Children Deported To Honduras Are Getting Are Getting Killed: Report (August 20).

The Huffpost writes:

"As a debate continues to rage in the US over whether to treat the influx of unaccompanied minors at the border as refugees to summarily deport them. The Los Angeles Times reports that minors deported to Honduras over the last month are being killed.

A Morgue director in the Honduran City of San Pedro Sula told the Los Angeles Times that 'at least five, perhaps as many 10' children killed there since February had been deported from the United States.

'There are many youngsters who only three days after they've been deported, are killed, shot by a firearm,' Hector Hernandez of the San Pedro Sula morgue, told Times reporter Cindy Carcano. 'They return just to die.'" (Emphasis added.)

What does this say about our nation's respect for its own laws and justice system, at least when those laws are meant to protect and save the lives of people who belong to unpopular and discriminated against immigrant groups, which America has always had, going back to the Irish in the mid-19th century and Asians in the late 19th century, down to Latin American, black and Muslim immigrants today?

It may be an "inconvenient truth" for the Obama administration, which seems to wish that the TVPRA would suddenly disappear almost as much as the Tea Party does, that this law has not been repealed and is still on the books. It is the law of the land.

As I mentioned in my August 20 post, the TVPRA provides specific and clearly spelled out protections to UAC ("border children") from countries other than Mexico (and oh yes, Canada, and perhaps also the Russian Aleutian Islands - if they are "contiguous" enough), before the children can be deported from the US.

These protections include: 1) hearings before an immigration judge with the right to an attorney (as long as the government doesn't have to pay); 2) appointment of independent child advocates to "effectively advocate for the best interests of the child"; 3), issuance of both procedural and substantive regulations assuring that court hearings for asylum and other relief will take into account the best interests of the child; and, 4) arguably most important of all, prohibition against repatriating the children without at least some minimal safeguards to protect them against violence and persecution upon their return to their countries.

In other words, the TVPRA's purpose of protecting border children against being arbitrarily sent back to the danger of harm and possible death in their home countries is not based on a technicality or a stray word or two here and there, as some of the law's detractors have suggested. To the contrary, the TVPRA lays out a full system of protection for the border children against exactly what the Obama administration is doing now - sending them home to the likelihood of danger and death without the slightest regard for their best interests, and in violation of even the most elementary Constitutional and statutory requirements of fundamental fairness and due process.

Especially when children who have no means to protect their rights are involved, this is a betrayal of America's entire system of justice - of everything that America stands for.

Once again, the words of Justice Field in his dissenting opinion in Fong Yue Ting v. US 149 U.S. 698 (1893), a case in which the Supreme Court majority had trashed the US Constitution in order to uphold the anti-immigrant hate and prejudice which gave rise to the Chinese exclusion laws, ring down through the more than 120 years which have elapsed since that time:

"I utterly repudiate all such notions, and reply that brutality, cruelty and inhumanity cannot be made elements of any procedure for the enforcement of the laws of the United States".

In that case, unfortunately not only for Mr. Fong, the plaintiff in that case who was arbitrarily thrown out of the United States after having resided here legally for more than a decade because of his inability to obtain a white witnesses or witnesses to confirm his period of residence, but for the future development of American immigration law up until the present time, the above was a minority opinion and the "brutality, inhumanity and cruelty" which Justice Field referred to were held by the majority to be legal.

But in the case of today's border children, summarily expelling them with only a charade of legal process is expressly forbidden by law, namely the TVPRA.

Is the administration's use of "brutality, inhumanity and cruelty", not to enforce one of our immigration laws, but to violate it, openly and directly, grounds for impeachment?

I am only asking that question. I do not presume to have an answer. But it might be possible that some other people, on the president's side of the aisle, could start asking this question too, if the death toll among deported children continues to grow.
_______________________________
Roger Algase is a New York lawyer and graduate of Harvard Collage and Harvard Law School who has been practicing employment-based and family-based immigration law for more than 30 years. His practice is centered on H-1B and O-1 work visas, and green cards through labor certification, extraordinary ability and opposite sex or same sex marriage, among other immigration and citizenship cases. His email address is algaselex@gmail.com


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Updated 08-21-2014 at 10:05 AM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    Sharing this.
  2. ImmigrationLawBlogs's Avatar
    Matt, do you still think I am a serial apologist for President Obama?

    And wasn't it Nixon's AG, John Mitchell, who famously said: "Watch what we do, not what we say"?

    Seems to me that this would be a good description of Obama's actions on immigration to date. At least, there is a growing number of Central American children who would no doubt think so (for the rest of their lives, however many more days that might be).

    Roger Algase
    Updated 08-21-2014 at 10:53 AM by ImmigrationLawBlogs
  3. MKolken's Avatar
    Although I mistakenly accused you of it once... I regretted it the moment I said it.

    Cheers Roger!
  4. ImmigrationLawBlogs's Avatar
    Matt, it is true that I used to trust Obama's good faith on immigration more than I do now, in common with many other people.

    You saw through him right from the start. Not many people did.

    Roger Algase
  5. MKolken's Avatar
    Only because I witnessed first hand all of the lies he was telling about his deportation record. If only 1/4 of what he said were true I'd probably have a different opinion of him...

    If only.
  6. Retired INS's Avatar
    As a supervisor of an INS enforcement unit for 19 years, I signed off on thousands of deportation cases. However, I often found other ways to handle illegal aliens when exceptional humanitarian concerns were present. I am not opposed to keeping these unaccompanied minors, but I have questions. The story says 5 to 10 of the deported children were murdered. Question, how many children were deported to that country during the time period the murders occurred? Your blog is meaningless without this information. Its easy for immigration attorneys to take the side of illegal aliens. It is quite another to get mainstream America on your side. You need to show these were not random acts of violence. How did the killers know these were deported children? What makes you think the deportation was the reason for being killed? What distinguishes these murders from other killings of children in Honduras?
  7. ImmigrationLawBlogs's Avatar
    RetiredINS's questions are legitimate, but the fact remains that we have an immigration law in place which is designed to make our officials ask these questions before the children are sent home, so that we will have a better idea of the extent of the danger they would be in.

    This same law, the TVPRA, is also designed to give children who believe that they may be in danger a fair heating in court, with the right to counsel.

    But wait! there's more. The law also requires our immigration officials to come up with substantive asylum regulations which would be more child-friendly. While these are not spelled out, changing the BIA's current restrictive definition of "particular social group", which has been the "graveyard" of many otherwise legitimate gang-violence based asylum claims up to now (no macabre pun intended) could certainly have been among the regulations contemplated by the statute.

    Maybe if the Obama administration were actually to obey this law, we would have at least a few less dead bodies of deported children in Central American morgues to collect data about.

    Roger Algase
    Attorney at Law
    Updated 08-21-2014 at 04:59 PM by ImmigrationLawBlogs
  8. Nolan Rappaport's Avatar
    The children have a statutory right to the Trafficking Act protections, one of which is a hearing before an immigration judge in removal proceedings. President Obama requested $3.7 billions to be able to provide the children with those protections. His request was denied. i don't think he got any money for providing those protections. Roger seems to believe that President Obama can wring $3.7 billions painlessly from other programs, but he can't. Without the additional funding, he can't provide the children with the protections they are entitled to under the Trafficking Act. I suspect that he is doing the best he can under the circumstances. In any case, I don't think it is fair to criticize him unless you can propose a plan for funding the Trafficking Act provisions.

    In other words, the Trafficking Act provisions are, in effect, an unfunded mandate. The Administration has to provide those protections, but Congress won't provide the money that is needed to do it.

    Second, the most important of the Trafficking Act protections is the right to a removal hearing at which the children can apply for asylum. For all but a small percentage of them, an asylum hearing just raises false hopes and condemns them to a trip back to Central America without any steps being taken to protect them when they get there.

    I will say it yet another time. This is an international problem that should be handled by the UNHCR. They can screen the children for refugee status and find homes for the ones who qualify in the countries that participate in the international refugee program, and they can provide assistance of some kind to the ones who though not eligible for refugee status are nevertheless in need of international protection. For those of you who have not read my article, see ?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
  9. Retired INS's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    RetiredINS's questions are legitimate, but the fact remains that we have an immigration law in place which is designed to make our officials ask these questions before the children are sent home, so that we will have a better idea of the extent of the danger they would be in.

    This same law, the TVPRA, is also designed to give children who believe that they may be in danger a fair heating in court, with the right to counsel.

    But wait! there's more. The law also requires our immigration officials to come up with substantive asylum regulations which would be more child-friendly. While these are not spelled out, changing the BIA's current restrictive definition of "particular social group", which has been the "graveyard" of many otherwise legitimate gang-violence based asylum claims up to now (no macabre pun intended) could certainly have been among the regulations contemplated by the statute.

    Maybe if the Obama administration were actually to obey this law, we would have at least a few less dead bodies of deported children in Central American morgues to collect data about.

    Roger Algase
    Attorney at Law

    I doubt any immigration official is going to spend a lot of time following up an report that 5 to 10 deported children later died in Honduras. If you are making the claim, you should provide proof if you really expect someone to follow-up. I am more sympathetic than most immigration people and I have a hard time believing the numbers are sufficient to act on. It is easy to quote what the government should do, yet another to prod officials into action.

    I was in management for 29 years and sat in on a lot of discussions. I don't see your claim being taken seriously without more facts. Since I am retired, persuading me is not enough.
  10. ImmigrationLawBlogs's Avatar
    I agree that if the number stops at 8 or 10 children killed in Central America after being deported, most people will not consider that the end of the world, though it would be 8 or 10 too many from a humanitarian point of view. But is there any reason to think the numbers would stop there?

    What happens if 80 or 100 children were killed after being returned to Central America?

    Would that be enough to concern retiredINS's former colleagues? Or how about 600 to 1,000 dead children who might have lived if given their legal right to fair hearings in the US?

    Or 8,000 to 10,000 murdered children who might have been saved?

    40,000 to 50,000 children murdered after being sent back from the US?

    RetiredINS, do you have access to any information which could definitely rule out any of the above figures as being possible? Of course not. No one does.

    Roger Algase
    Updated 08-21-2014 at 09:14 PM by ImmigrationLawBlogs
  11. Retired INS's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I agree that if the number stops at 8 or 10 children killed in Central America after being deported, most people will not consider that the end of the world, though it would be 8 or 10 too many from a humanitarian point of view. But is there any reason to think the numbers would stop there?

    What happens if 80 or 100 children were killed after being returned to Central America?

    Would that be enough to concern retiredINS's former colleagues? Or how about 600 to 1,000 dead children who might have lived if given their legal right to fair hearings in the US?

    Or 8,000 to 10,000 murdered children who might have been saved?

    40,000 to 50,000 children murdered after being sent back from the US?

    RetiredINS, do you have access to any information which could definitely rule out any of the above figures as being possible? Of course not. No one does.

    Roger Algase

    This is a reverse of the story from the Old Testament with Abraham and Lot - How few righteous people can be present in the city and still save it? How many deported children must die? That is not the correct question. The questions Homeland Security will ask are: Are deported children being targeted? If so, how do we know this? Do the children have responsible adults to be sent home to? If not, they should never be deported.

    I have a recommendation that I'm sure you won't like. Propose a solution that is similar to Special Immigrant Juveniles - give the children green cards but don't permit them to petition for their parents. The American public will find this easier to accept.
  12. Nolan rappaport a's Avatar
    It would be better at this point to move on to other issues. Nothing is going to change in this situation. President Obama will comply with trafficking act provisions to the extent that he can without additional funds. This means that the kids will not receive the care they shoul and all but a small percentage of them will be sent home to the violence they fled. It has become another example of what happens when the democrats and the republicans don't work together to find a compromise that meets the political needs of both parties.
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