Bush-era law makes it hard to return unaccompanied kids to Central America

Will he or won’t he – that seems to be the question surrounding President Barack Obama’s visit to Texas on Wednesday and Thursday.

Will he visit the U.S. – Mexico border, now ground zero for an influx of tens of thousands of unaccompanied minors streaming into the United States - 52,000 as of mid-June this year. Obama is in Texas primarily to attend private Democratic fundraisers in Dallas and Austin but, so far, no plans to see the epicenter of the crisis.

That may be a mistake given the mounting criticism of the administration’s response to the crisis from both the right and left ...

Just before leaving office, on Dec. 23, 2008, George W. Bush signed into law the William Wilberforce Trafficking Victims Protection Reauthorization Act. This bipartisan measure, named for a 19th century British abolitionist, was aimed at extending and beefing up efforts to prevent and prosecute human trafficking and protect the victims of trafficking.  More importantly, it described exactly how unaccompanied children crossing the border must be treated.

For children coming from Mexico and Canada, countries with a border with the United States, a Border Patrol officer has the authority to determine whether the child is eligible to stay in the country. And because the child can be easily handed over to officials from his or her home country, the process can move very quickly.
But for kids from Central America, where handing them back to authorities is more complicated, the law dictates that Customs and Border Patrol must turn undocumented children over to the Department of Health and Human Services within 72 hours.

HHS will then hold them humanely until they can be released to a “suitable family member” in the United States.

And the law requires HHS to ensure “to the greatest extent practicable” that these detained children “have counsel to represent them in legal proceedings or matters” who can explain how to apply for asylum or find ways to stay in the country.

At the time, the changes were intended to prevent immigration officials from inadvertently sending kids back to pimps and drug violence. The bill passed with remarkable speed – introduced Dec. 9, 2008, passed the House and Senate on the 10th and signed into law 13 days later ...

Dana Leigh Marks, the president of the National Association of Immigration Judges, told NPR that there is a such a huge back-log of these cases in immigration courts “that cases can remain pending for as long as four or five years. And, of course, someone who has a right to a hearing before an immigration judge is allowed to remain in the country while they wait for that hearing” ...