Why some Democrats are blasting bipartisan border crisis bill

A rare bipartisan bill, slated to be introduced by Texans in the US House and Senate Tuesday, is expected to be central to the House GOP response to the child migrant crisis on the border – and to President Obama’s request for $3.7 billion in emergency funding.

How House Republicans answer the president is key, because all funding bills must begin in the House, and Republicans control that chamber.

But just because the bill is authored by a lawmaker from each party – Rep. Henry Cuellar (D) and Sen. John Cornyn (R) – don’t expect Congress to sing in harmony about it. Many Democrats oppose it.

And just because the White House supports the idea and House minority leader Nancy Pelosi (D) of California says it's not a "deal-breaker," that does not mean smooth sailing in the Democrat-controlled Senate. 

On Tuesday, Senate majority leader Harry Reid (D) of Nevada said he opposes the bill, which adjusts a 2008 law originally meant to provide extra care for child victims of trafficking. Many now say the law was never intended to handle a surge like the current one from Central America, in which apprehensions of unaccompanied minors are expected to reach at least 90,000 by the end of September.

Still, the bipartisan bill, called the Helping Unaccompanied Minors and Alleviating National Emergency (HUMANE) Act, is the closest thing that Congress has to compromise at the moment. Here are the two key changes that it advocates, and why some Democrats in both chambers – as well as immigrant advocates – vigorously oppose them.

The bill treats unaccompanied child migrants equally

Under current law, minors crossing the border alone are treated differently, depending on their country of origin. Those from countries that border the United States are apprehended by the border patrol, who make a general determination about whether they can stay in the US. Those who don’t qualify are offered voluntary return to their home country. Those who potentially can stay are handed over the Department of Health and Human Services (HHS) to have their cases adjudicated.

The process moves quickly because of proximity and because these children can be handed back to officials in their home country. But kids from farther away are all sent to HHS services for an eventual hearing before an immigration judge. That's because it’s much more difficult to quickly assess the dangers they might face if they were returned to their countries, and the return itself would be more complicated – a plane trip.

The HUMANE Act would treat all unaccompanied migrants equally and offer all a voluntary return to their home countries. Rep. Luis Gutiérrez (D) of Illinois called the bill “a deportation-only agenda dressed up in sheep’s clothing.” Mr. Gutiérrez is the lead voice in the House for Latinos who support immigration reform.

A Democrat staff member points to the fear that kids feel when they are questioned by border patrol: “The biggest problem is that everyone gets a first yes or no decision by a lower level [border patrol] agent with a uniform and badge (and often a gun),” he says in an e-mail. Children and teens who have been traumatized “are rarely able to convey their situation accurately” especially coming from countries where uniformed police are a threat, not a protector.

The law in question, the Trafficking Victims Protection Reauthorization Act of 2008, doesn’t actually specify who makes the first determination. One solution might be to have US asylum officers, rather than the border patrol, ask the initial questions, says Marc Rosenblum, an expert on US immigration at the Migration Policy Institute.

The HUMANE Act speeds up the adjudication process

The 2008 law requires child migrants handed over to HHS to be given an immigration hearing and placed “in the least restrictive setting that is in the best interest of the child” – including with family members in the US.

But the process is snarled due to a lack of immigration judges. Cases are piling up and can take years to resolve. By the time the court date rolls around, many children, often living with family members, never show up. Now, 375,000 cases are pending and 46 percent of the children are no-shows in court, according to administration officials at a Senate hearing last week. Unaccompanied children are being apprehended at the rate of 200 to 250 a day.

The backlog gives the impression that children can come and stay in the US with no consequences – hence the bill’s effort to greatly speed up this process. The HUMANE Act mandates that those minors whose cases are sent to HHS (presumably in greatly reduced numbers) come before an immigration judge within seven days of completing the initial HHS screening.

It also gives a judge 72 hours after hearing a claim to make a decision. And it calls for 40 more immigration judges, as well as protective shelter for children while they await their court hearing. The upshot is that kids would not be dispersed around the country to families as their cases are put on hold.

These time restrictions are not in the original law.

Again, some Democrats – including key ones in the Senate – argue that a week is not long enough to find counsel for a minor and really investigate the danger of returning them home.

It’s not possible make the case that “your father got murdered in front of you” or that a gang said “either join us or die” if “you don’t have time to produce documents, affidavits, certificates,” Sen. Robert Menendez (D) of New Jersey, the chairman of the Senate Foreign Relations Committee, told reporters on Tuesday. He said it was “unacceptable” to have a deal that “undermines” the rights currently in the law.

So, where do things go from here?

A lot is in play. In the House, a GOP working group led by Rep. Kay Granger of Texas is crafting a policy response to the president’s request (drawing on the bipartisan bill of her Texas colleagues), while the chairman of the House Appropriations Committee, Rep. Hal Rogers (R) of Kentucky, is working on the dollars – which will fall short of the president’s request, he says.

Still, “I am hopeful as we go along, that this will become a bipartisan effort, and bicameral,” he told reporters.

Meanwhile, lawmakers in the Senate are invited to an all-Senate briefing on the issue Wednesday afternoon. While Senator Reid said he does not support the bipartisan bill – he believes the administration already has enough leeway to address the crisis within the current law – he also did not rule out changes to the 2008 law.

Sen. Dianne Feinstein (D) of California, a key force behind the 2008 law, wants to talk with Jeh Johnson, the secretary of the Department of Homeland Security, about using the law’s allowance for “exceptional circumstances” to address the crisis.

Says Mr. Rosenblum of the Migration Policy Institute: “There’s a tension between doing it quickly and doing it fairly.”