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Immigration Crisis at the Border

Since last October, tens of thousands of unaccompanied minors and women with children have traveled from Central America to turn themselves over to border patrol units along our southern border with Mexico.   As a result, ICE processing centers, detention facilities, and makeshift shelters are completely overwhelmed by this unparalleled number of undocumented migrants.  Delays in the currently backlogged immigration courts are expected to worsen dramatically.  This is a humanitarian crisis for which President Obama has requested $3.7 billion in emergency funds from Congress.  

It has been reported in the media that around 57,000 unaccompanied minors (children and teens) have surrendered to or been apprehended by border patrol agents along the U.S.-Mexico border since last October.   During the same period, an almost equal number of single women with small children in tow have been processed by border patrol units.   More than 70% of these migrants crossed the Texas border, with a little more than 13% crossing into Arizona.  Most of them came from Honduras, El Salvador, and Guatemala.  This influx of migrants is showing no signs of abating.  These migrants have risked their lives, health and safety, traveling through Mexico by walking and hitching rides on freight trains up to the U.S. border.   Many receive aid from smugglers reputed to be have been paid anywhere from $2,000 to $20,000 by the families of the migrants.   

While some of these migrants are motivated by a desire to escape poverty, many are driven by a fear of rampant violence from gangs and from sex & drug trafficking organizations.   It is said that another factor is the widely held belief in Central America that U.S. immigration policy favors minors.  This belief is lent support by the anti-child sex trafficking law known as William Wilberforce Trafficking Victims Protection Reauthorization Act.  President George W. Bush signed it into law at the end of 2008.   Under that law, unaccompanied minors not from Mexico or Canada cannot be quickly deported to their country of origin.  The law provides for them to be interviewed by a federal asylum officer and to be given a chance to have an immigration court hearing.  Another cited factor is Special Immigrant Juvenile Status, first created by Congress in 1990.  U.S. Citizenship and Immigration Services (USCIS) adjudicates applications for such status.  Eligibility is limited to foreign children under 21 for whom a “care and custody” order has been issued by a state juvenile court.  The state juvenile court must make a factual finding that it is not in the child’s best interest to be returned to a parent’s custody or country of nationality due to abandonment, abuse, neglect or similar reasons.  

Most of the minors who crossed the border in recent months are being temporarily held in Border Patrol Stations in Texas and Arizona, and in emergency facilities created by the Department of Health and Human Services.  After being processed by social service officials, most are or will be sent to live with a relative or sponsor in the United States pending their day in immigration court.  In contrast, unaccompanied children from Mexico or Canada must be screened within 48 hours and sent back unless there is evidence of human trafficking or a basis for seeking asylum.    

Instead of contributing to an easing of this crisis, many Republican politicians are exploiting it to criticize Obama and to thwart comprehensive immigration reform.   For example, Texas Governor Rick Perry refuses to support Obama’s request for $3.7 billion from Congress and calls it unnecessary.  He advocates deploying National Guard troops to stop the inflow of child migrants and to keep out all would-be immigrants.   Governor Perry claims President Obama could have prevented this crisis had his administration been truly interested in securing the border.   Representative Tom Cole (R-Okla.) and other Congressional Republicans blame the crisis on President Obama’s executive decision in 2012 to establish Deferred Action for Childhood Arrivals (DACA), which allows the deferral of deportation for certain persons under the age of 31 as of June 15, 2012, who illegally came to the United States before their 16th birthday.   Likewise, House Speaker John A. Boehner said, “This is a problem of the president’s own making.”  He and other Republican leaders are demanding concessions from President Obama before they approve any funds.   Among the demanded concessions are increased spending on border control and an amendment of the 2008 anti-child sex trafficking law that would require the cases of the Central American children to be adjudicated as expeditiously as those of Mexican children.

President Obama made his formal request for $3.7 billion in emergency funds from Congress on July 8.  $1.6 billion of that amount would be for the Departments of Justice and Homeland Security; $1.8 billion for the Department of Health and Human Services; and $300 million for the State Department.   These funds would expand the staff of immigration judges, trial attorneys, and asylum officials; pay for food, housing, and medical care for the migrants; and subsidize the investigation and prosecution of the smugglers who are facilitating this surge of undocumented migrants.

The Obama Administration is searching for legal ways to discourage Central Americans from sending their children on the perilous journey to the U.S. by deporting as many as possible and as quickly as possible.  In line with this objective, Representative Henry Cuellar, Democrat of Texas, and Senator John Cornyn, Republican of Texas, have proposed a bill that would amend the 2008 anti-child sex trafficking law.  However, Congressional Democrats and over 200 immigrant advocacy groups are adamantly opposed to any such legislation.  They have urged Obama to resist curtailing the special protections afforded to unaccompanied migrant children who show up at our borders.   Also, it is rumored that ending the Special Immigrant Juvenile Status program is being considered as a solution.

This immigration crisis at the border is unfortunate for the estimated 11 million undocumented immigrants who have waited for years for comprehensive immigration reform.  First, it distracts the public’s attention from their plight.  Second, it gives the opponents of immigration reform a specious excuse to continue doing nothing.   Most importantly, it complicates and perhaps delays President Obama’s timetable to achieve significant immigration reform through executive action.

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Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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