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Administration: Bush-era law requires us to slow-walk deportations

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Politics,Beltway Confidential,Opinion,Byron York,Immigration,National Security,Border Security,Jeh Johnson,Deportation

There's no doubt the Obama administration is already far, far behind in the job of processing and returning the tens of thousands of unaccompanied children from Guatemala, Honduras, and El Salvador who have illegally crossed the border into the United States in recent months. Asked again Tuesday how many of those immigrants have been given notices to appear in court, and how many have actually shown up, White House spokesman Josh Earnest said he didn't have the figure. "But let me just stipulate something," Earnest said. "Without knowing what that number is, and without having seen it, I think we can all stipulate that that number is too high." At three other times in the White House briefing, Earnest repeated his belief that the number he did not know was nevertheless too high.

Meanwhile, on Capitol Hill, Democrats noted that a 2008 law requires the administration to offer extensive and time-consuming procedural protections to the young illegal immigrants. "In 2008, then-President George Bush signed the William Wilberforce Trafficking Victims Protection Reauthorization Act," Rep. Bennie Thompson, ranking Democrat on the House Committee on Homeland Security, said at a hearing. "The law recognizes that special care is demanded when dealing with the young and vulnerable. Under these laws, the Border Patrol is required to take unaccompanied children who are not from Mexico into custody, screen them and transfer them to the Department of Health and Human Services Office of Refugee Resettlement."

The law to which Thompson referred began as something called the "Unaccompanied Alien Child Protection Act of 2007." A pet project of Democratic Sen. Dianne Feinstein -- she had introduced the bill several years before that with no success -- the measure not only placed unaccompanied illegal immigrant children in the custody of the Department of Health and Human Services. It also set strict standards for the handling of those children. It required "whenever possible, family reunification or other appropriate placement for unaccompanied alien children"; authorized HHS officials to "engage the services of child welfare professionals to act as child advocates and make recommendations regarding custody, detention, release and removal, based upon the best interest of each child"; provided "pro bono legal representation for unaccompanied alien children in their immigration matters where possible"; required "that children who are detained be placed in the least restrictive setting possible in accordance with the best interest of the child"; and required "that the Office of Refugee Resettlement conduct a home study before placing a trafficked- or other special needs-child in a foster home to ensure the safety of the child."

The law made provisions for the relatively quick return of children who come to the U.S. illegally from Mexico or Canada. For everyone else, though, it created a long and arduous legal process -- one that is unlikely to result in the return of a child to his or her homeland.

In 2008 Feinstein attached the bill to what was known as the "William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008." The larger bill, with Feinstein's inside, passed both House and Senate unanimously, and was signed into law by a lame duck George W. Bush on Dec. 23, 2008.

Now, the administration says it is that law which prevents the quick return of illegal immigrant children pouring over the border from Guatemala, Honduras, and El Salvador. In a Tuesday hearing of the House Homeland Security Committee featuring Department of Homeland Security Secretary Jeh Johnson, Democratic Rep. Cedric Richmond made note of calls to return the unaccompanied children to their homeland quickly. "Besides the humanitarian reasons and reasons of conscience and our morals," Richmond asked Johnson, "the William Wilberforce Act would keep you from turning them around, wouldn't it?"

"Well, the 2008 law is not in conflict with commencing a deportation proceeding against the child," Johnson answered. "It's my understanding that the law would not permit an expedited removal of an unaccompanied child. That's my understanding of the law."

"We do expedited removals," Johnson explained. "Let's say a Mexican crosses the border. They're apprehended by one of the chief's border patrol agents. We can do an expedited removal of the Mexican right back into the country of Mexico. We can do expedited removals of adults into Central America where there's no immigration judge involved.

But in terms of an expedited removal for an unaccompanied child, my understanding of the law is that that's not available."

Feinstein's law was never intended to deal with the volume of unaccompanied children crossing the border -- perhaps 90,000 this year. Yet the administration insists that in this case it must follow the law to the letter, even if that means the vast majority of those entering the country end up staying. That clearly frustrated some Republicans who have become used to seeing the administration enforce the laws it likes and deal more selectively with laws it doesn't like.

"I've been down to Nogales, where they have the large detention facility and I've seen the folks that we detained be debriefed, cleaned up, put on a bus and sent back," Rep. Mike Rogers of Alabama said to Johnson. "Why aren't we doing that with these children?"

"Well, first of all, Nogales is being used as a processing center for the unaccompanied children," Johnson answered. "They are leaving Nogales and they're going to HHS custody for shelter and then placement."

"Well, why aren't we putting them on a bus like we normally do and sending them back down to Guatemala?" asked Rogers.

"Because the law requires that I turn them over to HHS, sir."

"Well, the law required Obamacare to be kicked in two years ago," Rogers said. "And that hasn't stopped the administration before when it wants to do something different. This is a humanitarian crisis. It's a national security crisis for our country."

Few would doubt that the influx of children is a humanitarian crisis. And many believe it is a crisis that could be resolved by the quick return of the children to family members or responsible social agencies in their homeland. That's where the Wilberforce law comes in; such quick returns are forbidden. And with the immigration crisis -- after ignoring or downplaying other laws it finds undesirable -- the administration has suddenly become a stickler for enforcement.

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Byron York

Chief Political Correspondent
The Washington Examiner

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