The Dreamers are here to stay–for now. Late Thursday night, Department of Homeland Security Secretary John Kelly issued a press release and Q&A page on the department’s website announcing a two-year expansion of President Obama’s 2012 DACA policy, which protects immigrants who came to The United States as children. These children are commonly known as “Dreamers.”

It’s a surprising move by the Trump Administration. During the campaign, Trump once said that Obama’s 2012 DACA program “defied federal law and the Constitution” and vowed to end the program if elected.

DACA, or Deferred Action for Childhood Arrivals, was an executive order issued by President Obama in 2012 designed to protect children who entered the U.S. as minors from being deported. While DACA does not provide citizenship to those who qualify, it prevents them from being deported from their established lives in the United States and makes them eligible for work permits.

A sister program known as DAPA, for the parents of American citizens and lawful permanent residents, was blocked a few years earlier by a federal judge in Texas who declared that the program overstepped the president’s constitutional authority. Last week’s announcement formally rescinded the program, although it had never actually been implemented.

This change in immigration policy was praised by members of the immigration community, but to Trump’s hardline supporters, it may be seen as a betrayal of one of his key campaign promise on immigration.

However, aides to the president and representatives from Homeland Security confirmed that the DACA program is only under a temporary extension. Assistant Secretary for Public Affairs Jonathan Hoffman stated that it is still up to Congress to form a long-term solution to the immigration debate. This means that when the extension of DACA ends in just two years, the ‘Dreamers’ could still face deportation in the absence of a further extension or legislative solution.

But for now, it looks as if the Dreamers are safe to stay, that is unless Trump changes his mind.

James Levinson

James Levinson is an Editorial intern at Law Street Media and a native of the greater New York City Region. He is currently a rising junior at George Washington University where he is pursuing a B.A in Political Communications and Economics. Contact James at staff@LawStreetMedia.com

The post Trump Gives Dreamers a Temporary Reprieve appeared first on Law Street.

President Donald Trump recently issued a revised travel ban temporarily preventing people from six countries and all refugees from entering the United States. The original ban was immediately met with condemnation, protest, and legal action, leading the administration to change course. The revised version amounts to a significant scaling back relative to the original, but many of the longer term consequences remain the same. While this is the most recent and perhaps one of the most chaotic efforts to control who comes into the United States, it is far from the first. The history of U.S. immigration policy is littered with restrictions, quotas, and preferences for certain groups. Read on further to find out how President Trump’s executive action fits in the long lexicon of American immigration policy.

History of Immigration

The United States is and has been a land of immigrants long before it was even a country. European migration began in the 16th century, first with the French and Spanish then later with the English, who founded their first permanent colony in Jamestown in 1607. Many of the earliest European settlers traveled either to avoid religious persecution in their native land or to seek better opportunities. There was also a dark side to this original mass migration. Many white Europeans arrived as indentured servants and even more black slaves were forcibly removed from Africa and brought to the new world.

The second batch of migrants, which came to the United States in the 19th century, was also predominantly from Western Europe. Along with English settlers, came large numbers of Irish and German migrants. Approximately 4.5 million Irish made their way to the United States between 1820 and 1930, settling mostly along the coast. Meanwhile, roughly five million Germans arrived during the 19th century and often moved into the interior of the country. These groups were also joined by a large number of Chinese workers who came to the United States in search of gold. The Chinese immigrants tended to settle in the western portions of the United States.

At the end of the 19th century and into the early 20th century, the demographics of immigration shifted again. During this period there was a large rise in immigration from Southern and Eastern Europe. This was most clearly characterized by the nearly four million Italians who entered the United States. Following this wave, however, immigration slowed dramatically due to international events such as World War I and II, as well as the Great Depression. After World War II, refugees from Europe and the Soviet Union flocked to the U.S., along with those from Cuba following Castro’s rise. The video below from Business Insider provides a good illustration of where immigrants came from and when they arrived in the United States:

According to numbers from Pew Research Center, the highest percentage of foreign-born people living in the United States occurred back in 1890 when nearly 15 percent of the population was foreign-born. The lowest point occurred back in 1970 when just 5 percent of the population was born outside the United States. Recent data suggests we will likely reach a new high very soon. In 2015, about 14 percent of the population was foreign-born, a percentage that is projected to increase to nearly 18 percent by 2065.

The History of Immigration Restrictions

For almost as long as people have been migrating to the United States, policymakers have enacted a variety of different pieces of legislation to restrict immigration in general and for specific groups of people. First was the Naturalization Act of 1790, which made only free white people of good moral character who have lived in the U.S. for at least two years eligible for naturalization. This requirement was later changed to 14 years of residency and eventually back down to five years, due to political reasons. Another restriction was put in place in 1819 when Congress started requiring ship captains to provide a list of any foreign-born people onboard intending to immigrate.

Immigration restrictions did not really intensify until after 1850, which was the first time the U.S. Census asked what country people came from. This was followed by a dramatic increase in migration restrictions, particularly those targeting people from Asia. In 1862 the “Anti-Coolie” Act was passed with the aim of preventing Chinese immigration to California and forced California businesses that hired Chinese workers to pay an additional tax. There was also the Naturalization Act of 1870, which made free white people and “persons of African descent” and “nativity” eligible for naturalization but excluded Asians. Perhaps the most infamous example was the Chinese Exclusion Act passed in 1882, which barred all Chinese immigration for 10 years. This act was extended in 1892 by the Geary Act for 10 more years and then again indefinitely in 1902.

These restrictive measures extended into the 20th century as well, starting with the 1907 gentlemen’s agreement with Japan, where Japan agreed to discourage Japanese migration to the U.S. in exchange for more protections for Japanese people already in the U.S. There were additional restrictions at the state level as well, including in 1913 when California passed the Alien Land Law preventing Chinese and Japanese nationals from owning land. In 1917 Congress went a step further, banning immigration from many Asian countries with notable exceptions being Japan and the Philippines.

Another major immigration policy shift occurred in 1921 when the first of the Quota Acts was enacted. The law placed immigration quotas on countries to restrict the number of people from a certain country to three percent of the number that lived in the United States after the 1910 census. A similar act was passed in 1924 limiting the number of migrants from Eastern and Southern Europe to two percent of the 1890 levels. The adoption of the National Origins Formula delivered the final blow, completely banning immigration from Asia, while still allowing immigration from the Western Hemisphere.

It did not end with Asian immigrants either, as the Oriental Exclusion Act prohibited most immigration from Asia but also included foreign-born wives and the children of American citizens of Chinese ancestry. The Expatriation Act went even further, stating that an American woman who marries a foreign national loses her citizenship; this was partially repealed in 1922 but still held for women marrying Asian citizens. Even the Supreme Court entered the debate over race and citizenship in the case United States v. Bhagat Singh Thind. The court ruled that a caucasian man from India did not meet the definition of white person used in established immigration law, and therefore could not become a citizen.

In addition to people from Asia, other groups were also barred over the years for reasons that were not explicitly related to race or ethnicity. The Immigration Act of 1882, for example, put a $0.50 charge on people immigrating and forbid lunatics and those likely to become dependent on the state. The Alien Contract Labor Law was passed in 1885 to prohibit bringing foreign contract laborers to the country, except for certain industries. In 1891 Congress made polygamists, people with diseases, and those convicted of specific misdemeanors also ineligible for immigration. Political groups were also targeted–following the assassination of President William McKinley, Congress passed the Anarchist Exclusion Act in 1901 barring anarchists and political extremists.

Along with all these outright restrictions were a host of other measures to simply make the immigration process harder–like literacy tests on citizenship applications and additional agencies set up to oversee immigration–that, while not explicitly forbidding it, significantly hindered immigration for many groups. It was not until 1965 when Congress passed the Immigration and Nationality Act that many of the quotas and restrictions were finally eliminated.

The video below gives an overview of the immigration practices of the United States:

Immigrants in the U.S. Today

Despite the complicated history of immigration policy, the number of foreign-born people in the United States has increased dramatically since 1965. As of 2015, there were about 43.3 million foreign-born people living in the United States, which is approximately 13.5 percent of the total population. Of that amount, about 20 million are naturalized citizens, with the rest being permanent residents, people with temporary status, and people who entered the country illegally. The Pew Research Center estimates that in 2014 there was a total of 11.1 million foreign-born people in the United States who entered the country illegally.

The immigrant population rose from 9.6 million in 1970 to the 43.3 million here today. Over that time, the primary source of immigrants has shifted from Europe to Latin America and Asia. Specifically, in 2015 the top five countries of origin for new immigrants were: India, China, Mexico, the Philippines, and Canada. The 2015 numbers generally reflect the leading countries of origin for the total foreign-born population as well, which are led by Mexico, India, China, and the Philippines.

The immigrant population in the United States skews slightly female, at a little more than 50 percent. It is also older than the general U.S. population with a median age of 43.5 years. Demographically, nearly half of immigrants identify themselves as white, a little more than a quarter identify as Asian, and about 9 percent identify themselves as black. Ethnically, Hispanics and latinos are the largest group of immigrants, representing about 45 percent. In terms of education, the percentage of immigrants with at least a bachelor’s degree is almost the same as the national average, at about 30 percent. And geographically, states that border Mexico or have large population centers tend to have the most immigrants, with California leading the way followed by New York, Texas, Florida, and New Jersey.

Immigration and the Economy

From 2009 to 2011, the amount of money earned by immigrants was nearly 15 percent percent of all U.S. wages, although immigrants make up 13 percent of the overall population. Immigrants are more likely to be prime working age and work in higher proportions relative to their share of the population. Immigrants also own nearly one-fifth of all small businesses. Finally, nearly half of all immigrants work in white collar jobs and are often overrepresented in some middle-class occupations such as nursing.

While immigrants are working in disproportionately high numbers, they also generally do not harm the work opportunities for most native-born Americans either. While immigration’s effects on domestic workers is a hotly debated subject, many economists agree that it provides an overall economic benefit, although it could also have significant economic consequences for certain groups. In the long-run, immigrants can actually be beneficial to the American job market overall. Moreover, when immigrants drive wages down, it is often because they lack the protections that American citizens have and thus are susceptible to exploitation.

Immigrants, particularly undocumented workers, often pay into programs such as Social Security, which they cannot draw from, and are actually a net positive for the national budget. A review from the Social Security Administration found that undocumented workers paid as much as $13 billion into Social Security in 2010–which came in the form of payroll taxes from immigrants using fraudulent identification–but only received about $1 billion in benefits.

Aside from economic impacts, immigrants also affect American society in other positive ways. These include introducing new or different foods and cooking styles, presenting alternative forms of spirituality, and even incorporating non-traditional medical treatments.

Conclusion

The words inscribed at the foot of the Statue of Liberty in New York read, “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.” These inspiring words, originally written by the poet Emma Lazarus, perfectly encapsulate the ideals that many speak of when they refer to the United States as a nation of immigrants. However, for much of the nation’s history, the people and practices of this country have failed to live up to that ideal.

Donald Trump’s ban, while definitely not the first, is the latest in a long line of efforts to restrict immigration from certain areas and for certain groups of people. Although these restrictions are often passed under the guise of being in the best interest of America or its citizens, they can have the opposite effect. This is because immigrants are often willing to do many of the jobs native born citizens will not, at lower wages. Despite the United States’ complicated history, immigrants have continuously added to and enriched American culture.

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

The post Before the Ban: The History of U.S. Immigration Policy appeared first on Law Street.

With today’s constant access to news and commentary on law, policy, and legislation, voters expect candidates to be “policy wonks.” Bernie Sanders was commended during his presidential bid for his strong socio-economic policy reform proposals. Speaker Paul Ryan is lauded for squeezing out a laborious policy plan while a loud presidential election overshadows congressional action. Yet somehow Donald Trump, the presumptive Republican nominee for president, is running a nearly policy-free campaign.

Now, let’s give this a fair appraisal; Donald Trump has seven published platform points. This pales in comparison to Hillary Clinton’s 32 published platform points. Trump has even published less than libertarian candidate Gary Johnson’s 13 points.

While this might be excusable if his policy proposals were comprehensive and diligently crafted, they are not. Point for point, Donald Trump offers contradictory opinions, fosters disdain for Obama-era policies without offering alternatives, and proposes costly measures without revenue-building measures to offset them. Here are two of the most jarringly unrefined “policies”:

Immigration Reform/The Wall

While Donald Trump claims that his infamous wall along the Mexican-U.S. border will cost $8 billion, construction economists estimate that it will cost at least $25 billion, not including maintenance and surveillance.

Though this won’t be a superfluous expense because Trump promises that Mexico will pay for it. Trump proposes banning undocumented immigrants from being able to wire money to Mexico (an estimated $24 billion per year.) He will then tell Mexico that in order to resume wire payments, that it has to pay for the wall.

However there are two jarring flaws in this plan. Firstly, individuals wiring money to Mexico are not funding the government, but rather family still living in Mexico. Secondly, Mexico–a deeply fragile state currently–would not prioritize $24 billion in diffused money to families over a $25+ billion state-funded project.

Though this isn’t Trump’s only strikingly expensive proposal without a funding plan. Trump also proposes we triple the number of Immigration and Customs Enforcement agents, each with an annual salary of $30,000-$50,000.

Many of Trump’s immigration reform tactics are rooted in isolationist sentiments and labor practices, disguised as job creation. He proposes a temporary bar on granting green cards to force employers to hire authorized citizens, expresses persistent anti-trade sentiments, and falsely cites illegal immigrants as a large source of unemployment for authorized citizens.

To be clear, according to Pew Research unauthorized immigrants only comprise about 5.1 percent of the workforce and work predominantly in occupations like farming, maintenance, and construction. Even if these were widely desirable and growing occupations in the U.S.–which they are not–authorized citizens reclaiming these jobs would not significantly revitalize the middle class as Trump claims it could.

Healthcare Reform

Donald Trump’s ideas on healthcare are some of his most un-established and contradictory. The system which Trump describes is most similar to a single-payer healthcare system. Trump ensures that everybody will have insurance and that the government will pay for it. However he also promises a large, competitive private market.

Above all else, he promises the repeal of Obamacare. However, consider that the Affordable Care Act, a comprehensive multi-thousand page bill, extends healthcare coverage to more than 12 million people. Trump’s healthcare platform contrarily offers little more than supporting the sale 0f health insurance across state lines, support for health savings accounts, and a move to block-granting Medicaid to states.

He also suggests that those who cannot afford private health insurance plans should enroll in Medicaid. However, presently a family of four must make an average of $20-$35k to qualify. Further, in many states income alone doesn’t qualify a family.

Trump would have to support Medicaid expansion to bridge the gap between the current low income Medicaid threshold and the income level families who would strain to afford private insurance. This is contrary to his proposition to block-grant the program to states.

Trump acts as though by scapegoating immigrants and Obama-era policy, he can ignore how glaringly debt-inducing his proposals are. Holding executive power inevitably means holding vision for your party and country. It means planning to renovate, innovate, spend, and save all in future-minded consciousness. Ending each of your thoughts with “Make America Great Again” doesn’t invoke greatness from your policies, vision, or lack thereof.

Ashlee Smith

Ashlee Smith is a Law Street Intern from San Antonio, TX. She is a sophomore at American University, pursuing a Bachelor of Arts in Political Science and Journalism. Her passions include social policy, coffee, and watching West Wing. Contact Ashlee at ASmith@LawStreetMedia.com.

The post Sorry Trump, but “Make America Great Again” Isn’t a Platform appeared first on Law Street.

President Barack Obama is set to face the gauntlet as the Supreme Court gears up to hear a case that challenges the President’s use of executive power, has the potential to wreck havoc on the 2016 Presidential election, and may go beyond judicial power by granting states more rights and control than the national government on a notoriously federally controlled area of law and politics–immigration. Twenty-six states are challenging the President’s executive actions relating to immigration implementations made in 2014 as an abuse of power and an attempt to circumvent Capitol Hill on policy making.

To date, the case is scheduled to be resolved by the court in June 2016 as the Supreme Court issued that it would review the case, thereby granting the President the authority to execute the programs prior to leaving office, should he be victorious. Read on to learn more about the executive actions in question, the procedural posture and legal history of the case, and what it all could mean for U.S. citizens and aliens in the future.

DAPA and DACA: The Troublesome Two

On November 20, 2014, an executive order was issued expanding the rights of individuals within the Deferred Action for Childhood Arrivals (DACA) program and introduced the creation of Deferred Action for Parents of Americans (DAPA).

DACA, a program created in 2012, allows undocumented young people who came to the U.S. as children relief from deportation so long as specific criteria are met. These criteria include: 1) must be under 31 years of age as of June 15, 2012; 2) must have entered the U.S. under the age of 16; 3) must show continuous residence in the U.S. from June 15, 2007 until the present; 4) entered the U.S. without inspection (EWI) or fell out of a lawful visa status before June 15, 2012; 5) were physically present in the U.S. when applying for consideration of deferred action; 6) are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces; 7) have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors; and 8) do not pose a threat to national security or public safety.

Initially, DACA was available for a period of two years at a time–meaning that individuals were only granted temporary relief for two years before they had to re-apply and be approved by the government again. DACA also included a work authorization for those approved, but the executive action of 2014 made it and the work authorization renewable in three-year increments. Additionally, the requirement that the individual be under 31 years old as of June 15, 2012 or now no longer applies. The new DACA provisions do not discriminate against those currently over 31 years old. Further, the eligibility cut-off date was moved from June 15, 2007 to January 1, 2010. Anyone applying must show physical presence in the U.S. prior to January 1, 2010 and during the time of application.

DAPA, unlike DACA, did not have a predecessor. Under DAPA, individuals that have children who are U.S. citizens or lawful permanent residents (LPRs) may obtain relief from removal should they meet the following criteria: 1) as of November 20, 2014, have a son or daughter who is a citizen or LPR; 2) have continuously resided in the U.S. since or before January 1, 2010; 3) are physically present in the U.S. as of November 20, 2014 and during their application for consideration; 4) have no lawful status as of November 20, 2014; 5) are not an enforcement priority; and 5) present no additional factors that would deem the granting of their application inappropriate.

Deferred action is an administrative mechanism used by the U.S. government to de-prioritize individual cases for removal for “humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.” It is a way for the government to categorize the urgency with which individuals be removed from the country. Generally speaking, deferred action carries great discretion. It can be terminated at any point should the U.S. Department of Homeland Security deem termination appropriate and necessary. Furthermore, receiving DACA or DAPA does not provide legal status, a pathway to citizenship, or a pathway to obtain a green card, but rather permits for an individual to be legally present within the U.S. for a specified period of time. In order to be a valid permission, deferred action applications must be considered on a case-by-case basis and do not apply as all-inclusive or sweeping legal policies. An application process is required and permission must be granted for an individual to continue to stay within the U.S.

Substantive rights, immigration status, and pathways to citizenship are under the control of Congress. Only Congress can confer such rights and policies upon individuals within the confines of the U.S. However, the Executive Branch has the authority to set forth policies under prosecutorial discretion and deferred action so long as they fall within the framework of existing law.

The 26 states named in the lawsuit are greatly dissatisfied by the way that President Obama has taken to resolving the many pitfalls of current immigration policy and justice. A major point of contention for the states is that the President allegedly worked to circumvent Congressional authority and undermined the importance of the notice-and-comment process pursuant to administrative law. Notice-and-comment is an informal rule-making process, codified in the Administrative Procedure Act (APA) under § 553. It requires the agency proposing the rule to publish its proposal in the Federal Register and grant opponents or supporters of the proposed rule to comment, amend, present data and evidence for or against, and generally speaking, participate in the development of a newly proposed rule.

Additionally, while immigration is an issue controlled by federal law, the states fear that the changes made to federal immigration laws will place a great burden on the states to change their laws and be forced to provide services they are unable or unwilling to provide to individuals lacking legal status. Specifically, some states worry that the quasi-legal status and work authorizations will require the states to provide “state-subsidized driver’s licenses and unemployment insurance.”

Image Courtesy Of [Nevele Otseog via Flickr]

History of Legal Action: The Procedural Posture

Shortly after President Obama’s executive action on November 20, 2014, the highly publicized Maricopa County Sheriff, Joe Arpaio, challenged the action on behalf of Arizona in a case called Arpaio v. Obama. Arpaio’s lawsuit was dismissed by the Washington, D.C. federal court and upheld unanimously by the D.C. Circuit Court of Appeals on August 14, 2015. That decision has not been appealed to the Supreme Court.

Following in Sheriff Arpaio’s footsteps, 17 states filed a lawsuit, with 9 states joining thereafter, challenging President Obama in Texas v. United States. The President held the support of 15 states and D.C., who filed “friend of the court” briefs on his behalf. Ultimately, the Texas federal court blocked President Obama’s initiatives on a procedural basis on February 16, 2015. U.S. District Court Judge Andrew Hanen found that Texas had standing, or legal capacity and authority, to sue and that the President did not comply with the requirements of the APA, particularly the requisite need for notice-and-comment. It rationalized that the changes enacted by President Obama were substantive rules rather than simple alterations to existing and general policy, which required a specific procedural process.

The Department of Justice subsequently appealed the lower court’s decision and argued the case in front of the Fifth Circuit Court of Appeals on July 10, 2015. In a split decision, the Fifth Circuit upheld the lower court’s ruling, 2-1. The majority decision, authored by Judge Jerry E. Smith, found that Texas did, in fact, have standing to sue and that the changes to policy would greatly increase state costs and burden the states with additional processes and services as required by the national law. While it recognized that judicial review was unavailable under the APA in matters pertaining to agency discretion, it noted that the changes made to DACA and DAPA required notice-and-comment rule-making, and therefore, were non-discretionary. Further, the court ruled on an issue unaddressed by the district court and found that the President’s interpretation of the Immigration and Nationality Act (INA) was misguided and inaccurate because it vested great authority to the Secretary of U.S. Department of Homeland Security. This indirectly re-classified the specified classifications of immigrants codified in the INA and those petitioning to enter, all in violation of the Act itself.

Judge Carolyn King of the Fifth Circuit delivered a blunt dissent, ultimately stating, “I have a firm and definite conviction that a mistake has been made.” Further, Judge King argued that the case should have been dismissed as it follows prosecutorial discretion and therefore, not subject to review by federal courts. In criticism of her colleagues, she penned that allowing states to dictate national policy, particularly in areas solely within federal control, would be a great intrusion to the long-standing separations between government and state. Judge King added that the President’s executive actions were matters of general policy not subject to notice-and-comment procedure and that the interpretation of law under the INA actually sought to further the Department of Homeland Security’s mission in “[e]stablishing national immigration enforcement policies and priorities.”

Critics of the decision, including Judge King herself, highlighted the fact that the expedited appeal was anything but, as the Fifth Circuit took a very long time to render an opinion, likely in an effort to place the case under review by the Supreme Court after the conclusion of President Obama’s term in office.

The Petition Filed by the Department of Justice

In a writ of certiorari petition filed on November 20, 2015, exactly one year from the President’s executive actions, the Department of Justice sought review of U.S. v. Texas by the Supreme Court. While the Court has yet to make a decision as to whether it will review the case or not, the petition outlined key elements of President Obama’s argument demanding for review of this extremely crucial issue.

The DOJ Claims Valid Authority for Action Over States

The Department of Justice highlighted that the authority to make any and all immigration laws and policies is vested in the federal government, particularly under the control of the Secretary of the Department of Homeland Security, who hold authority to establish regulations pertaining to removal and admissibility rules. The Department has broad discretion over enforcement of immigration laws and the ability to prioritize which offenses or conduct deems immediate removal and which groups are not the top priority of government funds allocated for removal and enforcement. While 11 million removable aliens are estimated to live in the United States, the Department can only remove approximately 4 percent of those individuals within a given year. Congress has granted the Department $1.6 billion to remove those convicted of deportable crimes, thereby committing to the Secretary’s discretion in handling these cases in the most efficient manner possible. Therefore, prioritizing is of utmost importance to best allocate funding.

Additionally, the Department emphasized that continued presence through deferred action does not violate any criminal laws, as removal and inadmissibility under immigration laws is civil in nature. Deferred action has been an “exercise in administrative discretion,” that can be revoked at any point in time. It does not offer any legal status to those that fall within its classification. What is offered under deferred action, however, is work authorization protecting such individuals from exploitation under U.S. labor laws, subjecting them to taxation, Social Security, and welfare payments, and providing them with a way to make ends meet so they do not become a burden on U.S. citizens and society. Only “qualified” aliens are entitled to public benefits provided by the state in which they reside, and individuals lawfully allowed to stay within the U.S. under deferred action status are not deemed “qualified,” therefore, they are not entitled to public benefits unless their state specifically provides those under its own laws.

The Sticking Points: Substantive Arguments Against the States

Deferred action has been utilized in a variety of ways to grant individuals lawful presence in the U.S. Examples include individuals who petitioned under the Violence Against Women Act of 1994 and individuals whose lawful family members were killed on September 11, 2001 or in combat were granted temporary relief from deportation under deferred action. Decisions made based on deferred action have legally and historically been barred from judicial review.

Key elements of the petition included the Secretary’s discretion in enforcing immigration laws under resource constraints, the historical utilization of deferred action and its revocability, the security and economic interests in paying fees and applying for work authorization, and the effect that the divided Court of Appeals decision could have on the States’ ability to “frustrate the federal government’s enforcement of the Nation’s immigration laws.”

The petition discussed the lack of standing or authority by the states to bring the lawsuit, stating that private parties lack any “judicially cognizable interest” in the enforcement of immigration laws that are not threatened by prosecution, nor do collateral consequences of federal immigration policy grant a state standing to bring suit. Further, the Department of Justice noted that even if the states were able to show standing to sue, they would have to identify injury resulting from the specified policy that affects it in an “individual way.” Such an expansive reading of state standing would open a door for many more federal-state disputes in the long run and give states far-reaching and independent authority to challenge federal laws with more regularity.

The government further argued that the states lack a valid claim under the Administrative Procedure Act, as the Act does not allow suit by every individual “suffering an injury in fact,” and strictly limits the scope of judicial review to those who are “adversely affected or aggrieved by agency action.” Additionally, the government noted that the agency’s discretion in deferred action is not reviewable by the courts as there is “no meaningful standard against which to judge the agency’s exercise of discretion.”

An entire section of the petition offered examples of the Secretary’s authority to implement deferred action without challenge due to the long-standing history and nation of this power. Ultimately, the Department of Justice pointed to the authority vested in the Secretary to implement the executive actions as lawful within the scope of his power. Finally, the petition outlines the reasoning for why the deferred action is not subject to notice-and-comment rule-making as required by the APA because the actions were “general statements of policy” exempt from such procedural requirements.

What Could It All Mean?

Should the Supreme Court uphold the Fifth Circuit’s decision, great authority would be vested onto the states over a historically federal issue, making it inexplicably difficult to pass any immigration laws on a national level. It would force millions of people, subject to removal but not removal priorities, to continue living in the U.S., working off the books or not working at all, potentially creating a burden on society in the long run. Further, it could ultimately punish the individuals that gained temporary lawful relief under the 2012 DACA provisions that have never been challenged by any of the 26 states in question. The decisions spanning over the last year could potentially invalidate the 2012 DACA actions as well.

While the importance of review is undoubtedly clear, from an administrative law aspect, a constitutional law aspect, as well as a separation of powers aspect, it is unclear exactly what the fruit of review will be. If history were any indication, President Obama would be victorious in his challenge. However, the lower courts have addressed key issues that fall squarely within the context of interpretation and interestingly added some of their own issues, which remain undecided by the district court. How the Supreme Court reads and interprets the statutes in question, as well as its analysis of the interworkings of several federal laws will be determinative for its decision. This may ultimately be a case about procedure and the process of implementation rather than power and constitutionality of law.

Resources

Primary

United States of America v. Texas: Writ of Certiorari

 U.S. Department of Homeland Security: Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children and With Respect to Certain Individuals Who are Parents of U.S. Citizens or Permanent Residents

Additional

Politico: Obama Administration Takes Immigration Battle to Supreme Court

Politico: SCOTUS Keeps Obama Immigration Case on Track For Ruling by Summer

Cornell University Law School – Legal Information Institute: 5 U.S. Code § 553 – Rule Making

Immigration Equality: Deferred Action for Childhood Arrivals

 The Atlantic: A Ruling Against the Obama Administration on Immigration

 The New York Times: Appeals Court Deals Blow to Obama’s Immigration Plans

American Immigration Council: Understanding the Legal Challenges to Executive Action

 National Public Radio (NPR): Supreme Court Agrees to Hear Case on Obama’s Immigration Actions

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post The Federal Government’s Immigration Showdown: SCOTUS Will Decide appeared first on Law Street.

The debate over illegal immigration often focuses on enforcement–how we are going to secure our border and protect Americans–but the consequences of stronger enforcement often generally get less attention from policymakers. According to the Department of Homeland Security, Immigration and Customs Enforcement (ICE) detained 441,000 immigrants in 2013. A BuzzFeed News analysis of data from the Department of Justice found that Mexican immigrants are disproportionately detained pending deportation. This is true not only in terms of raw numbers, but also relative to detention rates from other countries–even when accounting for gender, legal representation, and those facing criminal charges.

According to BuzzFeed News,

Three-quarters of all Mexicans facing deportation on noncriminal grounds were placed in detention centers. For Guatemalans, the next most frequently detained group, the rate was 61%. For China and Cuba, longtime adversaries of the United States, the rates were 19% and 16%.

These findings are particularly striking because of how the website’s methodology looked only at people who were detained without facing criminal charges. BuzzFeed News’ article implicitly argues that the current focus on illegal immigration typically relates to immigrants coming from Mexico, and the detention disparity likely reflects an attempt to specifically deter Mexican immigration. The article also cites a Supreme Court decision, which ruled that civil detention cannot be used for deterrence or retribution–revealing a potential issue with ICE’s detention practices.

However, one thing that the analysis is unable to take into consideration is whether those who are detained have been previously deported or have criminal histories. To its credit, BuzzFeed News does acknowledge this and argues, that factors that are unaccounted for “…could explain at least part of the disparity — but probably not all of it, according to the experts consulted by BuzzFeed News.”

The article also highlights potential issues with detention when a detainee does not face criminal charges. A 2009 analysis by the Associated Press found that at one point in time more than half of those in ICE detention did not face criminal charges and had no criminal record.

In recent years, ICE has adjusted its detention policies to focus on high priority immigrants, who include criminals and repeat offenders. Jeh Jonson, the secretary of the Department of Homeland Security (DHS), issued new guidelines for the apprehension, detention, and removal of illegal immigrants to initiate a change from previous policies. DHS has also moved away from what have been called “bed quotas,” which was essentially an implicit requirement to fill every available bed in the department’s detention budget. The department’s budget required it to maintain “a level of not less than 34,000 detention beds,” which in practice became a requirement to fill nearly all of the budgeted beds in detention centers (see chart below). In an appropriations hearing this year, Secretary Johnson argued that this was no longer the department’s policy. Recent statistics also suggest that the actual number of detainees is around 78 percent of the required capacity for the first five months of the 2015 fiscal year.

Image courtesy of Congressional Research Service

Also important is the fact that convictions for immigration offenses caused a significant portion of the growth in the federal prison population. A Pew Research Center analysis of sentencing data found that between 1992 and 2012 the number of federal inmates (including citizens and non-citizens) more than doubled–going from 36,564 to 75,867. That growth is widely acknowledged and is a cornerstone of the criminal justice reform movement currently gaining momentum in the United States. But what is less known is the fact that 48 percent of the growth in federal prisoners is due to sentences for one specific offense: unlawful reentry, which in addition to other immigration offenses made up 30 percent of the federal convictions in 2012. As a result, non-citizen Hispanics make up the single largest portion of the federal prison population at 37 percent.

Tough on immigration policies are often discussed by politicians, but their effects–most notably the detention and imprisonment of immigrants–receive much less attention. Discussion of immigration should not be divorced from its costs and consequences, which despite recent progress in targeting higher priority immigrants remain significant. While supporting stronger border protections is a valid position, and may even be politically expedient, proponents should acknowledge how such a policy will affect prison populations.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post The Consequences of Stronger Immigration Enforcement Can Be Seen in Our Prisons appeared first on Law Street.

A history of inadequate immigration policies paired with the notion of the “American Dream” creates an interesting paradox for the role of immigrants in American society. Growing pressure from immigrants’ rights advocates and the overall changes in immigration policies initiated by the Obama Administration have prompted a debate on how to deal with growing numbers of undocumented immigrants. Are current deportation policies a part of the solution or are they the problem themselves? Read on to learn more about deportation practices in the United States.

What is deportation?

Deportation can be broadly defined as an order to leave a country. Deportation in the United States is carried out in two ways: removals and returns.

A removal is an official judicial or administrative order to leave the country, and is a formal legal process. If a person is removed from the country, he is barred from legally entering the country for a certain or indefinite period of time. Appearance in front of an immigration judge or an officer is often a part of the removal procedure. An order of removal becomes a part of the individual’s permanent record. U.S. Immigration and Customs Enforcement is the agency responsible for removal proceedings.

On the contrary, return is a more informal mechanism of deportation. It’s essentially a turn around at the border without any paperwork or formal procedure. In this way, being “returned” doesn’t result in any legal consequences and these individuals are not necessarily barred from re-entering the country in the future. U.S. Customs and Border Protection apprehends people at the border, and can carry out either removal or return proceedings.

While removals can be carried out anywhere in the country or at the border, returns are only applicable to individuals trying to cross the border or people who were caught in close proximity to it.

What laws govern deportation practices in the U.S.?

Even though the United States emerged as an immigrant country, regulating immigration has been a long-standing policy of the U.S. government. Race and ethnicity have long played a crucial role in policy decisions concerning immigration. Virtually all ethnic groups have suffered the consequences of racially motivated policies of exclusion. For example, Chinese immigrants were marginalized and constantly targeted for deportation throughout the early history of the United States.

More recent policies and practices pertaining to deportation focus on so-called “smart enforcement,” which emphasizes deportations of those with criminal convictions or ties to terrorist organizations. This strategy is rooted in close cooperation between immigration and border patrol forces, the FBI, and local law enforcement agencies.

In 1994, Congress passed the Violent Crime Control and Law Enforcement Act. Not only did it expand penalties for unauthorized re-entry after deportation, but for myriads of other immigration-related crimes.

In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was signed into law. It authorized mandatory deportations for undocumented immigrants who had criminal convictions, even non-violent ones. The definition of “aggravated felony” in immigration law was expanded to include tax evasion, failure to appear in court, and even receipt of stolen property. In addition, this law created special procedures for those accused of terrorist charges, including limiting their habeas corpus protections.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 further limited the rights of undocumented immigrants by expanding avenues for deportations without judicial review. According to both 1996 reforms, all undocumented immigrants with aggravated felony convictions were due for deportation, even if offense was committed years before the laws were enacted. In addition, the laws could be applied to all non-citizens, including legal permanent residents and undocumented immigrants alike.

Section 287 (g) of the Immigration and Nationality Act was also enacted back in 1996. It allowed law-enforcement agencies to perform the functions of federal immigration agents by deputizing local police officers. In recent years, the implementation of the 287 (g) initiative was widely criticized for its lack of federal oversight, racial profiling practices, and draining of valuable resources that could have been used instead to investigate crimes.

After 2001, criminal enforcement and national security practices were further tied to immigration policies. In 2002, the Department of Homeland Security was created to oversee both counterterrorism and immigration enforcement. All in all, the post-9/11 era can be somewhat characterized by the large number of initiatives and programs that pertain to immigration and deportation enforcement. Some major deportation-related programs include the following:

• The National Security Entry-Exit Registration System (NSEERS) was initiated in 2002 and required those who were from “suspect” nations, to register and interview with immigration authorities and to be fingerprinted. The program was criticized for its inherent religious and ethnic profiling as well as its broad overreach. More than 13,000 Muslims and Middle Eastern immigrants were deported, devastating families and communities. The program was suspended in 2011 due to extensive lobbying by Muslim Americans.
• The Consequence Delivery System took off in 2005, targeting those who were trying to enter the country unlawfully, especially through the U.S.-Mexico border. The focuses of the initiative were on formal removals and criminal charges. The Consequence Delivery System not only discourages voluntary returns, but encourages formal removals that are closely entangled with criminal proceedings.
• Operation Streamline was introduced during the same year in order to speed up immigration proceedings by providing courts with the freedom to initiate so-called “group trials,” which provide few legal rights to immigrants. From 2009 to 2012, 208,939 undocumented immigrants went through such court proceedings and were expelled from the country.
• The Criminal Alien Program (CAP) was created in 2006 and encompasses different components to identify and remove undocumented immigrants and sometimes permanent residents within local, state, and federal correction facilities. Identified individuals can be removed even if they were not convicted of a crime and still have pending charges. As of 2009, 57 percent of those deported through CAP were not convicted of any crime.
• Secure Communities Program (SCP) is an ongoing information-sharing program that was created in 2008. The main goal of the initiative is to identify undocumented immigrants with criminal convictions through the screening of biometrical data when people are booked into jails. As of now, Secure Communities has helped to remove 283,000 of such undocumented immigrants, 93 percent of whom were Latino. Critiques of this program include concerns about it is racial profiling in communities of color and that the program has collateral damages, as many undocumented immigrants identified and removed through the SCP are non-violent offenders or traffic violators.

During the past several administrations, deportation policies have shifted toward a focus on border security and apprehension of undocumented immigrants who have committed crimes. In this way, immigration policies have become more closely associated with criminal enforcement.

How many people are being deported?

Overall, the number of undocumented immigrants who are deported has grown over time. There were only 70,000 people deported in 1995-96, the next year this number rose to 114,000. By 2012 deportations reached 419,384 and climbed to 438,421 in 2013. However, in 2014 the numbers dropped to 315,943, with two-thirds of people who were deported being apprehended at the border or within 100 miles of it.

By some estimations, since President Obama took office more than two million people were deported, prompting discontent from immigrant advocate groups. However, even though deportation numbers went up during Obama’s presidency, most of the increase in official figures stems from shifting policies.

How do we count deportations?

During the second term of George W. Bush’s administration, more people were formally removed than simply turned around at the border through the previously discussed Consequence Delivery System. When Obama became  president, he continued to follow the already-in-place practices of treating many returns as removals, resulting in the overall increased numbers of deportees. Before, immigrants who were caught at the border were simply sent back to where they came from, without legal consequences. Now, they are more likely to be apprehended, prosecuted, and issued a deportation order. As a result, deportations that would previously be classified as returns are now officially counted as removals.

Return recordkeeping tended to be more informal. In most instances, people who were simply turned around at the border would not be counted in the official statistics. As a result, the total number of those deported seems higher now, but in the reality it’s hard to say how many people were returned and not counted in the official statistics before Bush started this trend. Between 2009 and 2012, the number of returns and removals were roughly the same, 1.6 million each; however, in 2013, 64 percent of removals were carried out at the border, signifying a 28 percent increase from 2008. Simultaneously, the number of people apprehended in the interior of the country dropped to 36 percent in 2013.

It’s clear that arrests at the border constitute a significant proportion of the overall deportations, while undocumented immigrants who have already been living in the United States are given less priority.

How are deportations are carried out?

Formal deportations are usually carried out only after a person appears before an immigration judge. However, during the last couple of years judicial proceedings were outpaced by expedited removals and other similar practices. In 2013, 83 percent of deportations were executed without judicial review. Moreover, 44 percent were fast-track removals and 40 percent were reinstatements of orders that were not previously carried out. During the same year, only 17 percent of deportations were carried out through judicial order, compared with 36 percent in 2011.

The video below looks at the life of one undocumented immigrant who was deported through reinstatement of previous order of removal after living in the United States for more than 20 years. He left behind a wife and five American children.

Who is being deported?

Criminals

The Obama Administration reiterated that it would target immigrants who committed crimes for deportation. Consequently, from 2009 to 2013 the numbers of deported immigrants with criminal convictions went up 54.6 percent. In 2013, 85 percent of deportees had been previously convicted of felonies or at least three misdemeanors.

However, in 2013, 60 percent of those who had a criminal record and were removed from the country, had only minor non-violent convictions, punishable by less than a year in prison. Since President Obama took office, only 20 percent of all deportees were convicted of serious crimes, including drug-related offenses. In 2012, less then one percent of those deported were charged and convicted with homicide.

Parents of U.S.-Born Children

Many of those who are deported have American-born children. It is estimated that in 2013, 72,000 parents with U.S.-born children were deported. In total, there are around 3.5 million undocumented immigrants who have a U.S. citizen child.

As a consequence, many U.S.-born children whose parents are being detained or deported enter the foster care system. Watch the video below to learn more about the growing share of such children in foster care.

Ethnic Composition

In 2013, Mexico, Guatemala, Honduras, and El Salvador were the top countries of origin for deportees. During the same year, 72 percent of all deportees were from Mexico, with many apprehended at the border.

Meanwhile, immigrants from the Middle East, Africa, and Asia are more often expelled from the country after being suspected of having ties with terrorist groups outside the United States. From 2003 to 2012, 60,000 from Muslim countries in the above regions were deported from the United States.

What are the issues with current deportation policies?

First and foremost, deportations of undocumented immigrants affect families and communities. There are many undocumented immigrants who have been living in the United States for years. One quarter of deported immigrants are separated from U.S.-born children, and even more are separated from other family members.

Undocumented immigrants also face a lack of legal assistance, and are not provided with the same rights as American citizens, including due process. Deportees are not provided with an attorney, and most of them don’t have a court hearing before they are expelled from the country.

The costs of immigration enforcement and deportation proceedings are enormous. In 2010, $600 million was allocated to add border patrol agents and new surveillance technology. In 1993 the annual budget of Customs and Border Protections (CBP) was only $363 million, while in 2013 it reached $11.9 billion. Immigration and Customs Enforcement (ICE) costs taxpayers $5.9 billion as of 2013, while Enforcement and Removal Operations (ERO) expenses amounted to $2.9 billion in 2012.

In addition, treating returns as removals is not only costly but results in serious legal consequences for undocumented immigrants. Those immigrants may never again have the chance to re-enter the country, even if it’s years later.

 What is being done about deportation?

The current administration passed Deferred Action for Childhood Arrivals (DACA) in 2012, which allowed undocumented immigrants who entered the country before they turned 16 years old and before June 2007 to apply for a renewable two-year work permit and avoid deportation. Since 2012, 580,946 undocumented immigrants have benefited from DACA.

In 2013, the  Obama Administration pushed for another law, the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744). Among other things, the bill would allow undocumented immigrants–if they meet eligibility requirements–to apply for registered provisional immigration programs (RPI). RPIs are six-year programs that allow all those eligible to avoid deportation and receive work permits. In ten years, immigrants with RPI status would be able to apply for permanent residency. Eventually they could become citizens of the United States. While this bill did not pass, it’s another example of the changes that some are hoping to see to America’s immigration policies.

But not everybody is happy with the “path to citizenship” approach to undocumented immigrants. Many GOP members believe that all undocumented immigrants should simply be deported. Watch the video below to learn more about pro-deportation point of view.

Conclusion

By the lowest estimations, there are around ten million undocumented immigrants in the United States. Deportations cannot be the only meaningful solution as the numbers are too high and the issue is too complex for such a simple approach as mass removals. The current administration has already taken the first steps to reduce deportations and provide permanent solutions for millions of undocumented immigrants. However, the criminal justice approach to immigration should be re-evaluated as it has been long proven that there is no relationship between immigration and crime. What will be done to fix the problem of the many undocumented immigrants in the U.S. is yet to be seen.

  Resources

Primary

U.S. Congress: The Antiterrorism and Effective Death Penalty Act of 1996

U.S. Congress: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

U.S. Immigration and Customs Enforcement: Secure Communities

U.S. Immigration and Customs Enforcement: FY 2014 ICE Immigration Removals

Department of Justice: Violent Crime Control and Law Enforcement Act of 1994

Additional

Immigration Policy Center: Immigration Enforcement in Prisons and Jails

Immigration Policy Center: The Border Security, Economic Opportunity, and Immigration Modernization Act

Immigration Policy Center: The Growth of the U.S.Deportation Machine

LA Times: High Deportation Figures Are Misleading

LA Times: Number of Immigrants Deported From U.S. Dropped Sharply in Last Year

New Republic: Who’s the Real Deporter-In-Chief: Bush or Obama?

Pew Research Center: U.S. Deportations of Immigrants Reach Record High in 2013

Tampa Bay Times: Lou Dobbs: Obama Administration ‘Manipulated Deportation Data’

Nation: Why Has President Obama Deported More Immigrants Than Any President in U.S. History?

The New York Times: Deportation Up in 2013; Border Sites Were Focus

The New York Times: More Deportations Follow Minor Crimes, Records Show

Washington Post: Your Complete Guide to Obama’s Immigration Executive Action

Washington Post: Is President Obama’s Claim To Have Increased Criminal Deportations Accurate?

Valeriya Metla

Valeriya Metla is a young professional, passionate about international relations, immigration issues, and social and criminal justice. She holds two Bachelor Degrees in regional studies and international criminal justice. Contact Valeriya at staff@LawStreetMedia.com.

The post America’s Deportation Policy: Successes and Failures appeared first on Law Street.

Immigration has long been a pressing issue in the United States. The debate has taken a new turn following a drastic increase in unaccompanied children from Central America trying to cross the border illegally. Current facilities for children are not equipped to handle this surge, and immigration courts are already backlogged. Why are children flocking to the United States in the first place, and what is the appropriate action for dealing with the crisis?

Who are illegal child migrants?

“Unaccompanied alien children,” who are generally defined as any unmarried person under 18 years of age illegally coming to the United States without an adult. The recent surge of child migrants from Guatemala, Honduras, and El Salvador has sparked major concern. Most of the children apprehended range from ages 14 to 17, but more recently the children are even younger. Kids coming to United States by themselves are a particular cause for concern since they are more vulnerable and susceptible to harm. Oftentimes, these children are trying to find family members that currently reside in the United States. Honduras’ President Juan Orlando Hernández described the children fleeing to the United States as war refugees, and the Obama administration has recently termed the escalating situation to be an “urgent humanitarian crisis.”

Where are the child migrants coming from?

Children from Guatemala, Honduras, and El Salvador account for more than 90 percent of those now in government shelters. Children from Mexico continue to illegally enter the United States, but apprehended children from Mexico are immediately returned to Mexico rather than housed in shelters. The problem now is how to shelter all the children coming from Central America. The graph below shows the scope of the growing problem in the past few years:

According to Border Patrol statistics and a UNHCR Report, the United States saw a 92 percent increase in child migrants ages 18 and under from a year ago, and a fivefold increase since 2011. In the 2011 fiscal year , roughly 4,059 kids from Guatemala, Honduras, and El Salvador entered the United States unaccompanied. By 2013 fiscal year, that number rose to 21,537 kids. This year, 52,000 children were apprehended at the southwest border from October 1, 2013 to June 15, 2014. The Obama administration anticipates that number to rise to 90,000 before the end of the fiscal year in September. Next year’s estimates show the number of children illegally entering the United States from Central America could soar to as much as 130,000. Last year, fewer than 2,000 of these children were returned to their home countries.

Why are they coming?

A variety of factors contribute to children seeking to enter the United States, and debate surrounds exactly what has driven the children to cross the border.

Violence

Many say civil unrest and gang activity; drug-fueled violence in Central America has led to an influx of children coming to the United States. Parents may feel that the children are not safe at home, more likely to join gangs, or  be subjected to violence. Others have family already in the United States that they are trying to reach. When interviewed, many children cited violence as reasons for leaving their country rather than any knowledge of U.S. immigration policy.

Lax Immigration Policy

Others, including Congressman Bob Goodlatte and House Speaker John Boehner, say that children are coming with the belief that the United States will not push deportation. Some interview-based studies cite that many women who entered the country with children believed the law would allow them to secure a “permiso”, or pass to stay in the county indefinitely. Conservatives blame the 2012 Deferred Action on Childhood Arrivals Policy (DACA), which exempts many undocumented immigrants brought to the country as children from deportation for two-year renewable periods. Recently the White House is trying to make clear that children who have recently crossed the border illegally are not eligible for legal status under the DACA program, since it only applies to immigrants who arrived in 2007 or earlier. Immigrants would not even qualify for the Senate’s recent immigration plan, where the eligibility cutoff was the end of 2011. On June 20, 2014, Vice-President Joe Biden traveled to Guatemala to meet with Central American governmental leaders in an effort to secure their support in dispelling rumors that those who cross the U.S. border illegally would not be deported. Whether or not immigrants are influenced by DACA remains contested, but there is little dispute that those in Central America believe unaccompanied children are more likely to be allowed to stay in the United States.

What does the United States do with the children?

Border officials are overwhelmed since the United States lacks appropriate facilities for the surge of children being apprehended. Children crossing the border are treated differently than adults and are not placed in immigration detention, but in shelters. The laws for processing unaccompanied, illegal children differ from those of adults due to the 2002 Homeland Security Act and the 2008 Trafficking Victims Protection Reauthorization Act. The Act was designed to protect children and address concerns involving human trafficking for vulnerable, unaccompanied children. All unaccompanied child migrants not from Mexico have to be screened, housed, and then transferred to the care of the Office of Refugee Resettlement (ORR) under the Department of Health and Human Services (HHS).

Border facilities have been struggling to supply enough food, beds, and sanitary facilities for the incoming children. Watch the strain on these facilities below:

By law, children can only be held at border facilities for 72 hours before they are transferred to the care of ORR. Due to the recent surge, many children have been held for longer than 72 hours. Border officials are caring for the children rather than spending time apprehending those crossing the border. Many agree the situation is far from ideal. Various reports of abuse in the system have surfaced, and children complain of being denied medical care or being kept in ice-cold holding cells.

ORR is tasked with administering long-term shelters and finding relatives of the children in the United States. Roughly 100 permanent shelters exist and all are currently filled to capacity. Authorities have been forced to open three temporary shelters at military bases in Texas, Oklahoma, and California (CNN). According to Vox, for some 90 percent of children, a relative can be found. Others remain in long-term care or foster homes until their case works its way through the immigration courts. It is possible some of the children could qualify for asylum or some sort of humanitarian protection. However, the minors lack legal representation which would help them obtain such protection, since unaccompanied children are not granted counsel in court proceedings. Many of the released children fail to even show up for their court date. The Department of Homeland Security released a helpful infographic to convey the entire process.

What has the United States done to deal with the problem?

The United States now faces two major issues:

1. What to do with the thousands of children who are need to be sheltered?
2. What to do to stem the future tide of unaccompanied child migrants from Central America?

Solution to the Current Problem

Aside from creating more temporary shelters, President Obama has called for a response through a new Unified Coordination Group. The Group was created to leverage federal resources to provide humanitarian relief using branches of the Department of Human Services and the Federal Emergency Management Agency (FEMA). The President announced a “surge” of immigration officials at the border and sent more immigration judges to Texas to help with backlogged cases.

Preventing future problems

The more difficult issue is how to prevent an influx of children going forward. Biden’s meeting in Guatemala was aimed at preventing false rumors about U.S. immigration policy to make clear that children crossing the border illegally will be deported. Watch for more on Biden’s visit below:

The United States also plans to aid Central American countries to prevent drugs, gangs, and violence while improving security. So far, the United States has announced over $80 million in aid to Guatemala, Honduras, and El Salvador. Legislation providing $2.28 billion in funds to handle the food, housing, and transportation of illegal children has advanced in Congress – an increase of $1.4 billion from the Obama administration’s original funding request.

Are there any other solutions?

If billions of dollars are provided to federal agencies and more immigration judges are sent to the Southwest, it is likely to reduce the strain of the current crisis. Some still call for stronger legislation regarding child immigration, but it would be difficult to pass a law specifically hard on children. Others in Central America shift the blame to the United States for lax drug policy which fuels the drug trade and generates violence. Some, such as Department of Homeland Security Secretary Jeh Johnson, suggest the United States should launch a campaign in Central America to warn of the dangers of illegal immigration. The problem, as with any refugee situation, is that such campaigns have little effect if the dangers children are trying to evade are much greater than any posed by the United States. Providing aid to Central American countries to assist with safety, security, and aid for at-risk youth all provide a good starting place. However, the United States must first resolve what to do with all of the children already in the country.

Resources

Primary

State Department: Trafficking Victims Protection Reauthorization Act of 2008

White House: Unaccompanied Children from Central America

US Customs and Border Protections: Southwest Border Unaccompanied Alien Children

Additional

The New York Times: As Child Migrants Flood to Border, U.S. Presses Latin America to Act

Vox: Thousands of Children are Fleeing Central America to Texas – Alone

UNHCR: Children on the Run: UNHCR Report

Mother Jones: Why are More and More Children Walking Across the Border?

US News: Obama Calls Spike in Unaccompanied Children Crossing the Border

LA Times: Enforcement Alone Can’t Stop Surge in Child Migrants

CBS: Thousands of Illegal Immigrant Children Will be able to Attend Public Schools

KIND: A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System

CNN: Daniel’s Journey: How Thousands of Children are Creating a Crisis in America

Huffington Post: These are the Real Reasons Behind our Humanitarian Crisis

AP: Obama: Child Migrants ‘Urgent Humanitarian Issue’

Alexandra Stembaugh

Alexandra Stembaugh graduated from the University of Notre Dame studying Economics and English. She plans to go on to law school in the future. Her interests include economic policy, criminal justice, and political dramas. Contact Alexandra at staff@LawStreetMedia.com.

The post The New Immigration Crisis: Children Crossing the Border appeared first on Law Street.