The Obama administration may be misreading a 2008 law when it says it has to release most illegal immigrant children from Central America who are surging across the border, according to a new report being released Wednesday by the Center for Immigration Studies.
Jon Feere, legal policy analyst at the center, said that 2008 law applied only to unaccompanied minors who don’t have a parent or guardian already in the U.S. — a situation he said doesn’t apply to “a significant majority” of the children now jumping the border.
And even when the 2008 law, designed to combat human trafficking, is triggered, it allows the government to continue to hold the children in “exceptional circumstances.”
The report comes as lawmakers on both sides are increasingly demanding Mr. Obama assert his executive powers to begin to hold and deport the children faster, and it could add legal backing to some of those calls.
“Since there is little evidence to suggest that illegal immigrant children currently arriving at the U.S. border are victims of trafficking, and since few can be described as ‘unaccompanied alien children’ under federal law, the 2008 trafficking law has limited applicability to the current border surge,” Mr. Feere says in the new report. “Accordingly, the Obama administration should be limiting its use of the law where possible.”
The law, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, was designed to combat human trafficking, including sexual trafficking of children. It says that authorities encounter children from countries that don’t border the U.S. who are traveling alone, the kids should be interviewed to determine if they have been trafficked, and then should be quickly turned over to social workers, and eventually reunited with families.
The children are usually still subject to being deported — but many of them never show up for their proceedings, and end up blending in with the estimated 12 million illegal immigrants already in the U.S.
Mr. Feere says the law only applies to children who don’t have a parent or guardian in the U.S., and he said data suggests most of the children do have close relatives who qualify, so they can be held.
He also said that while the children are often being smuggled, there’s little evidence the children are being trafficked against their wishes. Rather, they and their families are usually paying smugglers to help them on their journey, which means they shouldn’t qualify for trafficking protections.
Immigrant-rights groups, however, argue that the U.S. must take pains to interview all of the children to determine whether they are being trafficked and whether they require special protections from violence back home.
The groups also say detaining children is inhumane, and they should be united with family members here in the U.S. as quickly as possible.
For its part, the Obama administration has acknowledged it may have some “flexibility” under the 2008 law, but has said it prefers to have Congress pass legislation offering more solid guidance.