Texas Democrats Divided Over Bill Targeting Border Crisis

Proposed legislation to address the surge of unaccompanied Central American children crossing into the U.S. is dividing Texas’ border lawmakers, with one congressman warning that the bill would send thousands of youths to back into the treacherous conditions they had fled.

U.S. Rep. Henry Cuellar, D-Laredo, and U.S. Sen. John Cornyn, a Republican, on Tuesday filed the Helping Unaccompanied Minors and Alleviating National Emergency, or HUMANE, Act. The bill would treat “all unaccompanied migrant children crossing our border with equality under the law, and allowing for voluntary reunification with family, whether they are from Mexico, Central America, or any other country,” according to a statement from Cuellar’s office.

The measure would amend a 2008 provision in the William Wilberforce Trafficking Victims Protection Reauthorization Act that requires unaccompanied minors coming to the U.S. from Central America receive greater legal protections than those from Mexico or Canada. 

U.S. Rep. Beto O’Rourke, D-El Paso, criticized the bill, saying that tens of thousands of Central Americans apprehended during the current fiscal year would face quick deportation or be rushed through the court process as a result.

The legislation “would almost certainly condemn thousands of kids to return to a situation that may be harmful or deadly to them and that’s unconscionable,” he said Monday.

Current law mandates that the Department of Homeland Security process the Central American minors before handing them over to the Department of Health and Human Services and the Office of Refugee Resettlement (ORR), which places the children with a relative or guardian until they appear before a judge. The wait time could be three to five years, Cuellar said, which has helped fuel the surge on the South Texas border.

The “voluntary departure” component of the bill would allow the Central American youths to waive their immigration hearings and be returned back to their countries of origin almost immediately. 

O’Rourke said it wouldn’t be fair to offer that choice to children with little or no resources and little knowledge of the law.

“You ask people who are involved in this process, ‘How that could possibly be?’ You’re dealing with 7-year-olds and 10-year-olds and 12-year-olds who do not understand the law, and in many cases do not have an advocate or an attorney representing their interests,” O’Rourke said.

But Cuellar said the proposed legislation would not take away any current protections for any minor.

“We keep all the protections of asylum of credible fear, of victims of sex trafficking,” he said. “We don’t touch any part of the human trafficking [law],” he said. The proposed bill would instead speed up the process by giving the undocumented immigrants seven days to make an asylum or other humanitarian claim. A judge would then have 72 hours to decide whether the case moves forward.

The legislation also calls for an additional 40 immigration judges to help expedite the process. Cuellar conceded that the unaccompanied minors could be coached into claiming they have a credible fear, regardless of why they left. But that is something that will have to be worked though, he added.

“That’s happening right now, but we have to give them the benefit of the doubt,” he said. “If they have a claim, they are going to get their day in court, but they’re not going to wait three to five years.”

Current law mandates that unaccompanied minors from Mexico undergo a U.S. Customs and Border Protection screening within 48 hours of being detained to determine if they are victims of trafficking or other crimes. But some analysts and advocates say the screenings are performed haphazardly, if at all, robbing some migrants of their options almost immediately.

“CBP lacks the necessary training on how to effectively screen children. Few children will ever go before an immigration judge or have any opportunity to talk to a lawyer,” the American Immigration Lawyers Association and the Women’s Refugee Commission said in an analysis. “Most will be immediately sent back to their country of origin.”

Under the Cornyn/Cuellar proposal, Customs and Border Protection officials would still perform the initial screening, but CBP could not make the final decision.

“The Border Patrol will actually detain the migrant. They have a checklist of things they are required to go through to see if they are making a claim of asylum or are a victim of human trafficking,” Cornyn said Tuesday during a conference call with reporters.

Still, others worry that Central Americans will not get proper screenings, as they say is the case with thousands of Mexican children.

In a policy paper published this month, the Immigration Policy Center, a nonpartisan think tank, said that according to a 2011 report by the Appleseed Foundation, thousands of Mexicans do not get a fair shot at getting proper screenings. The Appleseed Foundation is a justice and advocacy group based in Mexico and the United States.

The IPC report concluded that while some Mexican minors who were from indigenous or very violent regions were given “unaccompanied alien child” status along with the Central Americans, “most Mexican child migrants did not receive TVPRA screening and thus could not transition to ORR care.”

“Instead, per an agreement between the Mexican and U.S. governments that Obama would like emulated among Central American countries, Mexican children were quickly deported,” the report added.

Cuellar’s legislation comes after U.S. Rep. Rubén Hinojosa, D-Mercedes, criticized Cuellar for promoting the change to current law. He said Cuellar did not speak for the Congressional Hispanic Caucus, which Hinojosa chairs, and told the Rio Grande Guardian that the Laredo lawmaker was trying to gain “national attention and name recognition.”

Cuellar said Hinojosa didn’t reach out to him.

“He never asked me to see the legislation, never talked to me about it,” he said. “He was just ignorant about what the facts were and what we’re trying to do.”

On Monday, Hinojosa’s office said the congressman continued to have concerns over the due process component of the Cornyn/Cuellar legislation.