The attempt by Senator John Cornyn (R., Texas) and Representative Henry Cuellar (D., Texas) to address the border surge by fixing the Wilberforce Act actually would make matters much worse.
Known as the HUMANE Act, their bill does give the government additional options for quick returns of Unaccompanied Alien Children (UACs) from non-contiguous countries (i.e., not Canada or Mexico), including Central America. But it does not require use of the quick-return options and, even worse, it actually expands access to the cumbersome full deportation proceedings for UACs from Mexico and Canada (who now can be quickly returned).
The bill sets up a new form of immigration proceedings for UACs that is accelerated, but also more lenient than current law. It provides UACs with the right to appeals and the opportunity to make a last-ditch asylum claim, also with more lenient standards, if all else fails.
Most worrisome, the bill would offer an opportunity for every one of the tens of thousands of UACs who have entered since January 2013 to negate any enforcement action taken against them, so that they can apply for a green card under new and more lenient standards. Under the bill, the immigration judge would have the sole discretion to grant UACs who are already here the permission to apply for legal status if it “would not be manifestly unjust.” This seems to allow immigration judges to abandon the rule of law in favor of their feelings about the case, and would be quite unprecedented in immigration law.
The bill pretends to address the problem of immigration-court no-shows by providing for the UAC to be held in the “custody” of the U.S. government. But “custody” can mean many things — perhaps detention, but more likely a program such as electronic monitoring, telephone check-ins, occasional visits, or other arrangements where the “supervision” is light. Even worse, under the provisions of this bill, if the UAC does not show for the hearing, then the case is frozen indefinitely. The immigration judge would not be able to issue an order of removal in absentia, which is common practice under current law, and which comes in handy if the UAC turns out to be a gang member or other troublemaker who gets arrested in the future.
Moreover, the HUMANE Act would expand the legal definition of UAC to mesh more closely with the Obama administration’s stretched discretionary application. Current law says a UAC is an illegal alien child without a parent or legal guardian in the United States to provide care. The HUMANE Act redefines a UAC as an illegal alien child who was unaccompanied at the time of apprehension — and once a UAC, always a UAC, even after reunification with a parent in the United States.
For a more detailed analysis of the bill, see this report.
Since the weaknesses in the Wilberforce Act are not really what is causing the surge, there should be no rush to enact a fix. And this bill is not a fix; in my opinion, it would make matters worse. The current law offers sufficient tools and options to enable a robust response that would result in the reasonably prompt removal of illegal crossers, no matter their country of origin. The real problem is that the Obama administration is choosing not to use them, and is inappropriately offering due-process privileges to illegal crossers who are not entitled to them. Instead of trying to work out a quick fix to Wilberforce, lawmakers should focus on the catch-and-release policies and general decay of immigration enforcement brought on by the Obama administration.
— Jessica Vaughan is director of policy studies at the Center for Immigration Studies.