Politics & Policy

Don’t Blame the Border Crisis on a ‘Bush-era’ Law

Young detainees at a Nogales, Ariz., customs facility. (Getty Images)
President Obama’s hands are not tied by it, even as he claims otherwise.

The surge of Central American families and unaccompanied children into south Texas has focused public attention on one of the few recent revisions of immigration law, the 2008 Trafficking Victims Protection Reauthorization Act, or TVPRA, also known as the Wilberforce Act. Championed by congressional Democrats such as Senator Dianne Feinstein, the law was a hastily written attempt to improve the handling of trafficked children who came into the custody of immigration authorities, either at the border or within the country.

In the face of public alarm over the Obama administration’s massive catch-and-release operation dispersing tens of thousands of illegal border crossers from Central America to cities and towns across the land, and very strong indications that these very policies are the main force driving the surge, President Obama and his allies have sought to deflect the blame on to this “Bush-era” law, claiming that it has tied their hands. They maintain that because of the law, we have no choice but to take in the kids, reunite them with their families, provide them with lawyers to help them make a claim for legal status, and provide health care and other services while they await a decision.

To be sure, the Wilberforce Act could stand some tweaking. It complicates the processing of apprehended illegal-alien children from countries other than Mexico in ways that are easy for the immigration-advocacy industry to exploit, and it has proven to be very costly to administer.

But this law is not the main problem. Even if this Congress could agree on a fix, the effort would only distract from the larger issue of inadequate enforcement generally. It can be reasonably argued that most of the new illegal arrivals — including many of the children — are not even covered by the Wilberforce Act, since they were not victims of trafficking and are no longer unaccompanied after being reunited with their families.

The Wilberforce Act was aimed at protecting children who were victims of “severe” forms of human trafficking. Many of the kids in this surge were not trafficked at all, but crossed with their parents and are considered part of a family unit. The government has been cagey about the exact number of family units taken into custody, and about the number of children in those families. Department of Homeland Security officials have said that between October and June the Border Patrol had apprehended 39,000 adults traveling with an unspecified number of children. The number of unaccompanied children apprehended as of mid June was 52,000.

In a trafficking situation, the child is a victim and an involuntary commodity being moved across the border for an illegal purpose such as servitude or prostitution. But a leaked Immigration and Customs Enforcement intelligence report confirms that most of the children who arrive unaccompanied are smuggled, not trafficked: “Unaccompanied children are typically smuggled to the United States by human smuggling networks through established routes . . . the fees for which are most likely paid for by [their] family members residing in the United States.” The smuggling is a deplorable scenario, but it is not the same thing as trafficking.

The same ICE report reveals that about 43 percent of the unaccompanied minors are reunited with a parent soon after arriving in the United States. Under the law, an unaccompanied child is defined as one who is under the age of 18 and without a parent or legal guardian in the United States to care for him. It can reasonably be argued that upon reunification, the child should again be considered part of a family unit. That means if the custodial parents were to be deported, it would be in the best interests of the child to accompany them back to their homeland.

Even Senator Feinstein thinks that the president has more leeway under the Wilberforce Act than he’s using: “That law already provides the administration with flexibility to accelerate the judicial process in times of crisis,” she told the New York Times. “The administration should use that flexibility to speed up the system while still treating these children humanely, with compassion and respect.”

It’s interesting how Mr. Obama and his team feel so constrained by the law in this instance, when they have found so many clever ways to exercise discretion in implementing other parts of the immigration law.

It’s possible to balance our obligations to protect genuine victims of trafficking and other abused children with our need to control immigration. Lawmakers should recognize that once again it is the president’s interpretation of the law that is the problem, not the law itself. With that in mind, Congress should direct any supplemental funding for the crisis to support proper enforcement, rather than bail out disastrous policies.  

— Jessica Vaughan is director of policy studies at the Center for Immigration Studies. 

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