In my July 22 post, I began a discussion of Nolan Rappaport's article A Better Way, in which he suggests an alternative way of dealing with the large number of unaccompanied children who have been arriving at the US border seeking refuge from gang violence and other dangerous conditions in the three Central American countries of El Salvador, Guatemala and Honduras. This post will continue this discussion, from the perspective that Nolan urges, and which it would be hard to dispute, namely determining what is in the child's best interests. This is also the stated purpose of the TVPRA itself.

The solution that Nolan suggests, boiled down to its essentials, consists of turning the children over to the United Nations for protection outside the US instead of processing them for asylum hearings in the US. Ultimately, Nolan contends, at least some of the children could then be admitted to the United States as refugees after being screened by UN staff to see if they qualify for refugee status. The others would be returned to their countries under UN supervision, working closely with the governments of the countries concerned, as well as the US.

There can be no doubt that the UN agency involved, UNHCR, has great expertise in asylum and refugee issues, including those affecting children. Nolan refers to an exhaustive study of Mexican and Central American children's refugee issues in the UNHCR report Children on the Run, which was released in March, 2014, as an example of the UN's ability to deal with child refugee issues in a way that would respect the best interests of each child more than America's flawed asylum system. Nolan argues that under current asylum policies, only a small percentage of the children involved would actually be granted asylum even if granted the full asylum hearings in immigration court which current law guarantees them (see Section 235, TVPRA). He also mentions the many practical difficulties of caring for the children in the US pending their hearings, providing for enough judges, and, most of all, persuading Congress to appropriate money to enforce the TVPRA.

In short, Nolan argues that the children would be better off under the protection of the UN, outside the United States, rather than in the custody of the US Department of Health and Human Services (HHS) inside the US, as provided by the TVPRA.

He states:

"The United States does not have to assume sole responsibility for helping the unaccompanied alien children from El Salvador, Guatemala and Honduras. Their plight is an international problem. The United Nations High Commissioner for Refugees (UNCHR) should be involved in finding a way to help them."

He continues:

"UNCHR Washington has developed a Refugee Protection and Mixed Migration 10-Point Plan of Action, which is described in their Report, 'Children on the Run'...Congress can make it possible for unaccompanied alien children from El Salvador, Guatemala and Honduras to benefit from the implementation of the 10-Point Plan by passing a bill that would exempt them from the removal-hearing requirement in TVPRA and remove any other obstacles to moving them out of the United States."

What would then happen to the children after being moved out of the United States? Nolan proposes:

"The children could then be moved to temporary locations outside of the United States, which could be chosen by agreements among the Governments of El Salvador, Guatemala and Honduras and the United States. When the children are safely placed in these locations, UNCHR could screen them to see which ones are eligible for refugee status. The rest of the children could be returned to their native countries when arrangements have been made with the governments of these countries to provide safe environments for them."

The above may sound reasonable in theory. But in practice, it overlooks the fact that Nolan's plan depends on the cooperation of the same Central American governments that have done so much to create the refugee crisis by failing to protect the children from gang-related violence in the first place. In essence, Nolan's proposal is little more than an elaborate form of refoulement, something that goes against the most basic principles of international refugee law, as an Appendix to the above UNHCR report points out.

Beyond this, Nolan's proposal directly conflicts with the UNHCR report's goal of strengthening, not weakening, asylum rights in the countries which child refugees are seeking to enter. In this critically important respect, Nolan's proposal would not support the UN's objective of protecting child refugees. Instead, it would undermine the UN's purpose.

In its March 12 press release for the Children on the Run report, UNHCR states:

"The number of children making the perilous journey [from Central America] alone and unaccompanied has doubled each year since 2010. The US government estimated, and is on track to reach, 60,000 children reaching United States territory this year in search of safe haven.

Although the US receives the majority of new asylum claims by both children and adults from El Salvador, Guatemala Honduras, it is not alone...

Globally, the protection of children is a core priority for UNHCR. The international community has long recognized both the right of children to seek asylum and their vulnerability." [Emphasis added.]

And in the opening remarks by Antonio Guterres, UNHCR High Commissioner, made on the same day in launching the above report he stated:

"We must uphold the human rights of the child as laid out in the relevant international and regional instruments - as well as the right to seek asylum and protection under the 1951 Convention and its 1967 Ptotocol. [Emphasis added.]

Do the above UNHCR statements support changing US law in order to deny asylum hearings to Central American children arriving at our border so they can be more speedily removed from the US? Only an Alice in Wonderland reading of the UNHCR pronouncements would support this view.

The conclusion that Nolan is debating against the UN, instead furthering its goal of protecting Central American refugee children to the greatest extent possible, finds even greater support when the appendix to the Children on the Run report dealing specifically with asylum and refugee issues is examined in more detail. This will be done in my next post about this issue.

I do not mean to overlook the fact that Nolan's proposal may have some merit on its own, particularly since it contemplates that some of the children might be eligible to return to the US in refugee status, which he appears to assume might be easier to obtain outside the US than political asylum would be in the US. But whatever merits (if any) Nolan's proposal might have in its own right, he should not imply that his plan is consistent with UNHCR's goals or objectives, at least as far as the all-important issue of whether US law should be changed to deny the children the right that they have to asylum hearings under current law.

It is quite clear that the UN plan which Nolan recommends so highly would be opposed to such a change.