Wall Street Journal
By Laura Meckler
May 31, 2018
President Donald Trump is pushing changes in immigration laws to make it easier to jail and quickly deport children who cross the border illegally. He also wants to make it harder to pursue asylum.
To him, these are legal “loopholes” that Congress needs to close to stop illegal immigration. But these proposals are even harder to enact than his controversial border wall, in the face of widespread Democratic and some Republican opposition.
“The current immigration and border crisis…are the exclusive product of loopholes in federal immigration law that Democrats refuse to close,” Stephen Miller, the president’s top adviser on immigration policy, told reporters this week.
The Obama administration voiced concerns with some of the same provisions. But for some lawmakers in Congress, they are viewed as critical humanitarian protections for vulnerable children and asylum seekers.
“These are not loopholes,” Sen. Dianne Feinstein (D., Calif.) said at a recent Senate hearing. “They are laws that Congress passed to address the documented injustices facing children in our immigration system.”
This month, the Trump administration announced it would separate migrant children from their families so that parents can be jailed and prosecuted for crossing the border illegally. Administration officials say they wouldn’t have to do that if the laws were changed.
The Obama White House, faced with a surge of child and family migrants, proposed some of the same policy changes. In 2014, as the number of children and families arriving at the southwest border soared, the administration decided to jail families, rather than release them into the country with instructions to appear at a court hearing later.
That practice generally came to an end when a federal court ruled that jailing children for more than about 20 days, even with their parents, violated a 1997 court settlement known as the Flores agreement, which resulted from an earlier court challenge to government procedures around the detention and treatment of children.
Now the Trump administration wants Congress to overturn the Flores agreement so it can resume family detention. Absent that, it says it has no choice but to separate families so that the adults can be jailed and prosecuted.
The second change Mr. Trump wants is for Congress to pass a law that guarantees children from countries other than Mexico and Canada the right to have their cases heard by an immigration judge. Under the Trump proposal, all migrant children, no matter where they come from, could be quickly deported after being screened for child trafficking.
The underlying law governing the treatment of unaccompanied children, called the Trafficking Victims Protection Reauthorization Act, passed Congress without controversy in 2008 and was signed into law by President George W. Bush. During the 2014 migrant surge, the Obama administration signaled it was willing to amend this statute to allow for expedited deportations for all children.
“I think we had 60,000 kids at the border that year,” said Amy Pope, who was deputy homeland security adviser in the Obama White House. “It not only strained resources, the stories of what was happening to children along the way (to the U.S. border) were horrifying.”
Ms. Pope said opposition from congressional Democrats halted that idea before it gained momentum. She added that other parts of the Obama policy focused on helping improve conditions in Central America, from which many migrants were fleeing.
The Trump administration has asked Congress to reduce foreign aid to the region. Last week, Mr. Trump said the administration is “working on a plan” to cut foreign aid to countries based on the number of their citizens who illegally cross the border.
A State Department official on Thursday replied to questions about cuts to aid by noting the funding that the administration has requested. She also said that most of the aid that is available for the region goes to the three countries from which most migrants come.
The Obama administration also considered separating children and parents, though never decided to do so, according to two people who worked on the issue for the administration. One former official said the consensus was such a policy was “just too draconian.”
The third major change that the Trump administration is seeking would change the standard for seeking asylum at the border.
Under current law, people who claim fear of persecution in their home countries have to show that they have a credible fear of returning. Those who show a “significant possibility” of winning an asylum case are now admitted to the U.S. to wait for a court hearing, where a judge will consider the case.
The administration notes that most people who clear that hurdle ultimately lose their asylum cases after a long adjudication process. It wants Congress to raise the bar for the initial screenings so that fewer people are admitted into the U.S. to pursue their claims. Specifically, it wants to require people show that it is “more probable than not” that their statements are true.
Mr. Trump put all these changes on his list of demands for legislation aiding so-called Dreamers, the young undocumented immigrants who came to the U.S. as children. A Senate bill that included many of the provisions won only 39 votes, well short of the 60 needed to pass.
Those hundreds of thousands of young immigrants were protected under an Obama-era program that Mr. Trump announced last fall would end in March. Court rulings have required the administration to maintain the program, and as a result, congressional negotiations over a replacement are on hold.
Democrats say they will continue to fight all of these proposals, and even some Republican aides say enacting the changes is a long shot.
Sen. Dick Durbin (D., Ill.) said that it is violent conditions in Central America, not U.S. law, that draw migrants here. He noted that the vast majority of children and families come from the same three countries: Honduras, Guatemala and El Salvador.
“The Trump administration refuses to address the root causes that are driving people to the United States,” he said. He said that if the draw were these “loopholes,” people would be coming from all over the world.
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