Bipartisan alternative to Obama's border crisis plan takes shape

A bipartisan alternative to President Obama’s emergency request for $3.7 billion to deal with the child-migrant crisis on the border is simmering in Congress. The emerging legislation focuses on what many lawmakers say is a root cause of the surge: a 2008 child trafficking law that spells out how to handle the cases of unaccompanied minors.

Working in the legislation’s favor is that it’s being hatched by a Republican and Democrat in the state where the problem is most acute: Texas. Also in its favor: Nancy Pelosi, the majority leader for Democrats in the House, says the idea behind the effort is “not a deal-breaker” to passing the president’s request for emergency funding – even though she and other Democrats strongly oppose changing the law.

The Department of Homeland Security estimates that as many as 90,000 unaccompanied minors will have been apprehended at the border by the end of September. Ground zero for the surge is the Rio Grande Valley. That gives special impetus to Texas' Sen. John Cornyn (R) and Rep. Henry Cuellar (D), whose district borders the river, to work on a bill that could pass both chambers.

The heart of the legislation, which Senator Cornyn says is still in its early stages, concerns a change to the Trafficking Victims Protection Reauthorization Act of 2008. The act was meant to provide special treatment for child victims at a time when such migrants arrived in far lower numbers than now.

“We’re trying to identify what are the parts of the 2008 law that we should leave undisturbed, and what parts need to be changed in order to deal with the cause of the current crisis,” Cornyn told the Monitor. “So we’re narrowing that down and looking for what additional resources need to be sent to the border to deal with the surge, in terms of border patrol, health and human services, and the like.”

At issue is the way the 2008 law treats unaccompanied minors from countries that do not border the United States. 

When minors come from Canada or Mexico, border patrol agents are allowed to determine whether they can stay in the US. The whole process, including deportation, goes quickly because those children can be handed over directly and safely to officials from their home countries.

But most of the children in this influx, which began in 2012, come from Guatemala, El Salvador, and Honduras. Because they come from farther away and have to be flown back to a situation that is harder to read from a distance, the law takes greater care with them.

They must be turned over to the Department of Health and Human Services within 72 hours of being apprehended, so that the agency can find them a safe place to stay and legal counsel to advise them on whether they qualify for asylum.

Because of the backlog in immigration courts, they can sometimes wait a year or two for their case to be heard, and many never show up. Without deportations, people in Central America get a message that minors can stay in the US.

The White House wants to address this issue by asking Congress to give the secretary of Homeland Security the same “discretion” to handle cases from the three Central American countries that it already has with minors from Canada or Mexico, said Homeland Security Secretary Jeh Johnson at a Senate Appropriations Committee hearing on Thursday. That discretion would give the border patrol the ability to offer children a voluntary return – which many children accept, Secretary Johnson said.

But the White House did not include this proposal in its request for emergency funds – and it’s not clear when it might make the request. That is likely because some Democrats and immigrant advocate groups are not persuaded by administration assurances that it will uphold the “spirit” of the 2008 law.

Those groups are adamant against actually changing the law. They are concerned that children will lose their right to due process and will be coerced by law enforcement and returned to dangerous situations.

“I will fight tooth and nail changes in the Trafficking Victims Protection Act,” Sen. Patrick Leahy, (D) of Vermont, said at Thursday’s hearing.

Sen. Dianne Feinstein (D) of California, whose work had a large influence on the 2008 act, hopes that Johnson can use an “exception” clause in the law to find the flexibility he needs, rather than have Congress amend the law.

Cornyn says the outlines of his bipartisan legislation will become more clear next week. He says he can “assure” those who worry about children’s rights that they will be upheld.