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October 2014, Volume 21, Number 4

Children, Obama Delays Action

Immigration reform in summer 2014 took a back seat to debate over what to do about women and children arriving on the Mexico-US border from Central America. After 15,000 arrived in May and June 2014, Central American police set up roadblocks to ensure that women and children leaving El Salvador, Guatemala and Honduras have documentation showing that both parents approve the international travel of children. Bus companies were prohibited from selling tickets to unaccompanied children.

President Obama in June 2014 promised to take executive action before the end of summer to protect some unauthorized foreigners in the US. In September 2014, Obama delayed action on immigration until after November 2014 elections, citing the influx of Central Americans for "shifting the politics" of immigration reform.

Over 63,000 unaccompanied children under 18 were apprehended on the Mexico-US border in the first 10 months of FY14, double the 25,000 for the entire year of FY13. Most were from El Salvador, Guatemala and Honduras, and most were detected in the Rio Grande Valley of Texas soon after they entered the US from Mexico. Most were 15 to 18, but a quarter were under 15 and a quarter were female.

Some 90,000 children under the age of 18 were expected to arrive in the US in FY14, but the influx of children slowed from 350 a day in May and June to 100 a day in August 2014, or from 10,000 a month to fewer than 3,000 a month.

Under the Trafficking Victims Protection Reauthorization Act of 2008, Border Patrol agents can hold minor children for up to 72 hours before they are turned over to an agency within the Department of Health and Human Services (HHS) that operates shelters and sends the children to parents or relatives in the US. The HHS budget for FY14 to care for unaccompanied children is almost $1 billion.

Most of the unaccompanied children are placed in deportation proceedings. However, while waiting for these proceedings to unfold over several years, over 85 percent are released to their parents (55 percent) or relatives (30 percent) in the US.

The Border Patrol said that many of the children apprehended told them that the US government was giving "permisos" that allow foreign youth to live in the US and go to school, likely referring to the notices given to foreigners in deportation proceedings to appear before an immigration judge and explain why they need asylum in the US. While waiting for these hearings, children may go to school and access some social services.

Cecilia Munoz, director of the White House Domestic Policy Council, said in June 2014 that "the increase may be in response to the perception that children would be allowed to stay or that immigration reform would in some way benefit these children."

Another 40,000 mothers with children were apprehended just inside the US border in the first nine months of FY14. At first, most were ordered to appear before immigration judges and released with bus tickets to places where they had relatives. The Immigration and Customs Enforcement agency does not monitor most of the unauthorized foreigners it releases, and reported that 70 percent of the families released did not comply with the order to report to ICE offices after they reached US relatives.

ICE requires foreigners released because of a shortage of detention space to maintain regular contact so that they can be removed if an immigration judge orders their removal.

To speed removals, DHS in August 2014 sent mothers with children to detention centers at a cost of $260 per person per day. Advocates criticized detention, which they say makes it hard for Central Americans to obtain lawyers and win asylum in the US. They sued in August 2014, alleging that the video hearings conducted with Central Americans detained in Artesia, New Mexico violated the migrants' due process rights because the remote location made it too hard for lawyers to represent their migrant clients.

President Obama in July 2014 asked Congress to provide $3.7 billion to step up enforcement and open more shelters for families and children. Congress did not act on Obama's request before adjourning for its August recess. Democrats proposed $2.7 billion to deal with arriving Central Americans, while Republicans sought to couple $1.5 billion in additional funding with changes to a 2008 anti-trafficking law that would reduce the procedural rights of unaccompanied children.

Perspective. A 2008 anti-trafficking law allows unaccompanied children under 18 from Mexico and Canada to be interviewed within 48 hours of apprehension. If they express no fear of returning home, they sign forms and leave the US voluntarily. In the first nine months of FY14, over 12,000 Mexican youth were apprehended and returned to Mexico voluntarily.

Unaccompanied children from other countries are transferred to HHS within 72 hours and placed with relatives in the US while they undergo deportation procedures that can take years. Reporters who interviewed Central American youth in Mexico awaiting an opportunity to enter the US described poverty and criminal gang violence at home, but few mentioned the individual threats of persecution required to receive asylum.

Migrant advocates highlighted the fact that some young migrants may qualify for asylum, while restrictionists asserted that many are joining parents or relatives in the US.

One study found that half of the minors represented by lawyers were allowed to stay in the US, while 90 percent of those who appeared in court without lawyers were ordered removed from the US. Some 228 full-time immigration judges had 375,000 pending immigration cases in summer 2014.

Internal and external reports warned of more unaccompanied Central American youth in 2012 and 2013, but the Obama administration did not act until mid-2014. One reason for not acting was fear that calling attention to the growing number of unaccompanied youth could reduce Congressional support for comprehensive immigration reform.

The Board of Immigration Appeals in August 2014 granted a Guatemalan woman asylum in the US because of domestic abuse at home that the government refused to prevent; local police would not accept her complaint. Refugees are persons outside their country of citizenship who have a "well-founded fear of persecution" based on race, nationality, religion, political opinion or "membership in a particular social group." The BIA ruled that the Guatemalan woman was part of a social group of married women in Guatemala who cannot escape their abusive spouses.

Abroad. Obama met with the presidents of Guatemala, El Salvador and Honduras in July 2014 in Washington DC to secure their cooperation to reduce the outflow of children and to speed returns. Central American presidents promised to spread the message that most of the youth seeking to enter the US illegally would eventually be sent home. However, they also noted that "ambiguous US immigration policies" helped smugglers to convince families that sending youth to the US was worthwhile.

Obama in September 2014 approved a plan to allow Central American children to apply for US refugee status so they could avoid the dangerous trek through Mexico to the US. The US anticipates resettling 70,000 refugees in FT15, and 4,000 refugee slots are reserved for Latin America. Obama noted that two-thirds of unaccompanied migrant children have been granted asylum by immigration courts.

Mexico, which shares a 600-mile border with Guatemala, is opening new border control stations to slow the flow of Central Americans northward. Mexico and Guatemala are planning a new guest worker program that would allow Guatemalans to work in Mexico's four southern border states to promote "orderly migration." Mexico deported 89,000 Central Americans in 2013, including 9,000 children, while the US removed 106,400 Central Americans in FY13.

The most significant new control step is Mexico's plan to stop migrants from using freight trains, the so-called Beast, to travel through Mexico. The Mexican government, citing injuries and deaths as well as crimes committed against the migrants, said it would help rail operators to keep migrants headed for the US off the trains.

Mexico in 2010 revised its migration laws to make illegal presence in the country a civil offense rather than a crime. Many churches and non-profits shelter Central American migrants, prompting some Central Americans to seek visas to stay in Mexico.

Obama and DACA. President Obama created the Deferred Action for Childhood Arrivals program by executive order in June 2012. DACA grants renewable two-year work and residence permits to unauthorized foreigners who arrived in the US before age 16, have lived in the US at least five years and were under 31 on June 15, 2012, and are enrolled in school or have a high school diploma or are honorably discharged veterans.

Those who qualify pay $465 for renewable two-year work and residence permits. (

As of August 2014, over 580,000 unauthorized foreigners had received DACA status. About 80 percent of those approved were Mexicans, followed by four percent Salvadorans and two percent each Hondurans and Guatemalans. A survey of almost 2,400 DACA recipients by the American Immigration Council found that 60 percent had found a job since obtaining DACA status, and almost half increased their earnings with DACA status.

Unauthorized foreigners with DACA status are considered "lawfully present" in the US. Most states allow DACA recipients to obtain drivers' licenses, and many federal programs extend eligibility to qualified DACA residents. DOL issued a Training and Employment Guidance Letter in July 2014 affirming that qualified DACA youth with work authorization may participate in Workforce Investment Act programs, including the Section 167 National Farmworker Jobs Program.

In September 2014, the Pentagon announced that those with DACA status could enlist in the US military if they have special language and medical skills. The Military Accessions Vital to the National Interest program allows up to 1,500 foreigners in the US without regular immigrant status to enlist and, after a few months of military service, to apply for US citizenship.

President Obama on June 30, 2014 promised to "fix as much of our immigration system as I can on my own, without Congress." Many immigration lawyers argue that, since Congress has not provided sufficient resources to remove all of the unauthorized foreigners who are in the US, Obama has executive authority to set enforcement priorities and thus determine which types of unauthorized foreigners should be targeted. In their view, DACA-type programs granting legal status to some unauthorized foreigners are constitutional so long as Obama does not completely stop deportations..

These assertions drew warnings from Republicans not to stop deportations of non-criminals and extend DACA-type status to other unauthorized foreigners. Senator Marco Rubio (R-FL), a supporter of the Senate-approved comprehensive immigration reform bill S 744 in June 2013, warned Obama not to take unilateral actions to stop deportations and extend protections to unauthorized foreigners. Rubio in August 2014 said that the House Republican approach to piecemeal reform was the appropriate strategy, since Republican lawmakers and many voters do not trust Obama to enforce immigration laws.

In anticipation of executive action on immigration, advocates urged Obama to "go big" and give temporary legal status and work authorization to the eight million foreigners who could have legalized under S 744, the bill approved by the Senate in June 2013 that would allow unauthorized foreigners in the US before the end of 2011 to earn legal status. The AFL-CIO argued that granting work authorization would not increase labor market competition with US workers because the unauthorized are already in the US, but legalization would allow them to press for higher wages and improved working conditions to benefit both US and unauthorized workers.

The AFL-CIO also urged new protections for any workers granted Temporary Protected Status by Obama from employer retaliation for lying to obtain their jobs (some employers fire workers who lied on their employer applications) and an end to the 287(g) program that allows state or local law enforcement to hold suspected unauthorized foreigners for ICE. The AFL-CIO also urged TPS status for all workers who engage in protected job-related activities such as strikes and protests.

Employers pressed Obama to make more immigrant visas available to foreign workers by counting only workers, and not their family members, against the 140,000 employment-related visas available each year. If only the principal is counted against the quota, there would be more immigrant visas available for workers. Employers also want to recapture unused employment visas from earlier years, which they say would make another 200,000 immigrant visas available.

The US Department of State says there are 4.4 million foreigners waiting for immigrant visas, and that queues are longest for citizens of the Philippines, India, Vietnam and China.

Obama delayed executive action on immigration until after November 2014 elections, saying "it would be harmful to the policy itself and to the long-term prospects for comprehensive immigration reform" to act quickly. Many Democrats in tight races asked Obama to delay action on immigration, fearing a backlash from voters. Migrant advocates were disappointed, accusing Obama of choosing "politics over people."

Ex-Florida Governor Jeb Bush, who may be a 2016 candidate for the Republican presidential nomination, supports a pathway to US citizenship for unauthorized foreigners.