Update: August 20, 12:05 pm:

i would also like to mention that while there are reasons to have reservations about Nolan Rappaport's proposal to turn unaccompanied border children (UAC) over to the UN for refugee screening in a third country or countries, it is still a step in the right direction and more in keeping with the spirit of TVPRA Section 235(c)(5), discussed at the end of this post, than mass expulsions would be.

Nolan's main fear, from the standpoint of the children's welfare, is evidently that under long standing BIA precedent decisions going back almost 30 years, and which the BIA is now backing away from very slowly, if at all, the overwhelming majority of the children would lose their asylum claims in immigration court and then be deported back to their countries of origin.

But Nolan apparently overlooks a section of the TVPRA which is clearly meant to provide protection to the children against this eventuality by changing these restrictive BIA policies.

Section 235(d)(8) states:

SPECIALIZED NEEDS OF UNACCOMPANIED ALIEN CHILDREN-Applications for asylum and other forms of relief from removal in which an unaccompanied alien child is the pri
sncipal applicant shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both the procedural and substantive aspects of handling unaccompanied alien children's cases. (Emphasis added.)

This provision not merely invites, but directs, the Obama administration to change the restrictive doctrines, especially those relating membership in a particular social group, which have prevented children from being granted asylum in the past based on gang violence or related claims. It is time to enforce this provision, instead of expelling UAC children en masse.

Where are the regulations, Mr. President?

The previously updated version of this post follows:

This post has been updated as of 11:15 am, August 20 in order include a discussion of the effect of TVPRA Section 235(c)(5) on any attempt that is now being made, or might be made in the future by the Obama administration to rush unaccompanied Central American border children back to their countries without first ensuring their safety and welfare on arrival back home.

National Journal reports that Guatemala, Honduras and El Salvador, the three countries which most of the unaccompanied children apprehended at the US border come from, are not well prepared to take them back after they are sent home from the US. See Returned Migrants Face Bleak Future, August 18


The NJ writes:

"The US isn't currently deporting unaccompanied minors at a rapid rate, but it's an issue that will come up again in Congress after the August recess. And immigration analysts, nonprofit workers and researchers are concerned.

'Transporting planeloads of kids is just setting the system up for failure', said Amy Thompson, an immigration policy analyst. 'I mean, there's really no system in place now.'

The article continues:

"In Honduras, buses filled with families and unaccompanied minors caught in Mexico arrive in the country about 3 times per week, according to Juan Sheenan, Catholic Relief Services country representative in Honduras.

Quickly they're processed. The new arrivals are interviewed. Afterward, some head straight home to their communities; others stay in the shelter for no more than two to three days.

But if the children are sent back in droves, Honduran officials likely won't have the resources to address the return of myriad planes filled with children...

More staffing, medical supplies, food and shelter would be needed, and all that costs money. Claims of potential for abuse or violence of a child is returned to their [sic] home community should be investigated, Sheenan said."

Similar lack of resources also affect children sent back to Guatemala and El Salvador, even though some rudimentary programs now exist.

NJ concludes:

"But in all three countries, more services would be needed to provide a safety net at home if the US begins deporting unaccompanied minors swiftly, and it takes time to establish sustainable programs."

It is understandable that the US needs to protect its borders and enforce its laws. Our political leaders no doubt also need to protect their seats in Congress.

But should not America's immigration policies also take into account the need to protect the lives and welfare of the tens of thousands of children seeking refuge at our border, with or without their families? Is just loading them onto planes and sending them home as fast as possible really a solution?

And a rush to mass deportation of unaccompanied border children would also violate the spirit and intent, as well as the actual provisions of TVPRA Section 235(c)(5), which has the title:


This section provides, inter alia, as follows:

(A)REPATRIATION PILOT PROGRAM- To protect children from trafficking and exploitation, the Secretary of State shall create a pilot program, in conjunction with the Secretary of Health and Human Services and the Secretary of Homeland Security, nongovernmental organizations, and other national and international agencies and experts, to develop and implement best practices to ensure the safe and sustainable repatriation and integration of unaccompanied alien children to their country of nationality or of last habitual residence, including placement with their families, legal guardians, or other sponsoring agencies. (Emphasis added.)

(B) Assessment of Country Conditions - The Secretary of Homeland Security shall consult the Department of State's Country Reports on Human Rights Practices...in assessing whether to repatriate an unaccompanied child to a particular country.

Where is the Subsection (A) pilot program? Are the required Subsection (B) consultations being made prior to deportation?

Therefore, any rush to deport unaccompanied border children back to the three "Northern Triangle" countries of Central America without making sure that they will be safe and properly cared for upon their return would not only be inhuman, but illegal under the TVPRA.

Granted, if Congressional conservatives are successful in gutting the TVPRA, then mass expulsion of border children without regard to the conditions in their home countries might no longer be illegal.

It would merely be inhuman.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family immigration law for more than 30 years. His practice is concentrated in H-1B and O-1 work visas, as well as green cards through PERM labor certification, extraordinary ability and opposite or same sex marriage, as well as other immigration and citizenship cases. His email address is algaselex@gmail.com