Immigration: What You’ll Be Arguing About this Month
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The Fiscal Times
August 3, 2014

Congress left town last week on a five-week break without taking any productive action on the issue of the tens of thousands of unaccompanied minors who have illegally crossed the Southern border in the past few months. That means two things: the problem will continue to fester, and politicians from both parties will spend the net five weeks blaming each other for the lack of a legislative solution. 

President Obama, in particular, will likely take advantage of Congress being out of session to pummel Republicans on the issue throughout the month of August. In fact, he didn’t even wait until the House of Representatives had left town on Friday night, launching into his criticism of GOP inaction during a Friday afternoon press conference. 

Related: “Do-Nothing Congress” Gets Ready for an Unearned 5-Week Vacation 

As we can expect to keep hearing about the border crisis from both sides for the foreseeable future, The Fiscal Times offers this brief guide to the current state of play, and some of the main issues involved. 

The Border Crisis. A year ago, even six months ago, if someone had referred to the “border crisis,” the general assumption would have been the current rate of illegal immigration, primarily from Mexico, into the Southwestern U.S. But in the past few months, as the public has become increasingly aware of the massive numbers of unaccompanied minors from Central America crossing the border, it has taken on a more specific meaning. The most urgent crisis right now is the need to house and otherwise care for children who have entered the country illegally without a parent or guardian.

Most of these children appear to be from Honduras, Guatemala, and El Salvador, three of the poorest countries in the Western Hemisphere, and the site of horrific gang violence. Young children are often drafted into the gangs under threat of violence or death, and a large number of the children fleeing to the U.S. are trying to avoid that fate. 

Some of these Central American children will eventually be granted asylum, and others will be deported. But under the law, all of them must get a hearing. This is what is currently causing problems. 

Related: The Immigration Problem We’re Not Talking About 

The Wilberforce Act. Technically the William Wilberforce Trafficking Victims Protection Reauthorization Act, this is the law that everybody loved. Until they didn’t. 

The Wilberforce Act was first passed in 2000 as the Victims of Trafficking and Violence Protection Act and was renewed multiple times thereafter, usually without controversy and sometimes with a degree of fanfare. The law was designed to give special protections to minors who cross the border illegally, on the grounds that some may be forced to do so as unwilling participants in the illegal sex trade or other unlawful activity. It also recognized that some might cross in order to escape violence or coercion into the sex or illegal drug trade. 

The law guarantees children from countries other than Mexico and Canada, the right to a hearing in U.S. Immigration Court. 

Originally a popular bipartisan measure, the Wilberforce Act has recently come under fire from many politicians, primarily but not exclusively Republicans, who want to do away with the more formal hearing process in favor of what amounts to expedited deportation hearings. 

Related: U.S. Immigration Court’s Dirty Secret 

The National Association of Immigration Judges has said this is a terrible idea. But they currently have their own problems. 

U.S. Immigration Court The court system that handles immigration cases is not technically part of the Judicial Branch of the government, but is an arm of the Justice Department, and is badly understaffed. There is a backlog of 375,000 cases, with fewer than 230 judges to handle them. That puts the average number of cases per judge at more than 1,500. This means that it can take years for a case to get to court. 

In the case of unaccompanied minors, this creates a problem because the children have to be cared for in the mean time, and while some can be placed with relatives legally living in the U.S., many require government-provided food and shelter. 

This has spurred some U.S. cities and states to offer to house the children in vacant state and federal facilities and other suitable settings. But it has also sparked ugly protests, with anti-immigrant groups, in some cases, gathering to try to block buses of children from coming into their communities. 

Related: Jeb Bush Warns GOP on Immigration Reform 

Many of those protesting the government’s effort to house unaccompanied kids are angry at the Obama administration for what they view as an unconstitutional offer of “amnesty” to children who cross the border. 

Delayed Action for Childhood Arrivals (DACA) In June 2012, President Obama signed an executive order that allowed illegal immigrants who came to the U.S. as children prior to June 15, 2007 and meet a number of standards the opportunity to apply for deferral of deportation proceedings. Though not a law, DACA had the effect of implementing some of the immigration reform proposals that President Obama had supported through the failed DREAM Act in the first years of his presidency. 

Despite the fact that DACA specifically applies only to immigrants who entered the U.S. prior to June 2007, Republicans claim – with considerable evidence – that the order is encouraging children to cross the border today. Some, they argue, are lied to by “coyotes” – criminals that facilitate illegal border crossings – who tell them that the ruling will cover them. Others, they argue, cross because the fact that a sort of protection granted to child immigrants once, creates hope it might be granted again. 

Congress, of course, has the ability to invalidate DACA by passing some sort of legislation restructuring the immigration system. 

Related: GOP Passes Doomed Border Bill Before recess 

Comprehensive Immigration Reform (CIR) A comprehensive rewrite of federal immigration law is the stated goal of almost everyone involved in the debate over the border crisis. CIR, of course, means different things to different people. To some, it refers to a specific bill passed by the Senate last year. Others see it as a theoretical goal of the current Congress, with many roadblocks in its way. 

Last year, the Senate passed a bipartisan immigration reform bill that, by all accounts, would have passed the House if it had been allowed to come up for a vote at some point. However, the Senate bill is now likely academic for at least two reasons. First, while it did address the issue of unaccompanied minors, it did so in a different context, before the problem became as severe as it currently is. Second, the immigration issue is now politically toxic. Even within the House Republicans majority, difference of opinion on how to address the issue led to a major embarrassment for House Speaker john Boehner (R-OH) last week, when he was forced to pull a bill from the floor due to lack of support from his own party. 

Reality There was a time, earlier this year, when immigration reform might have been passed. But that’s in the rear view mirror now, and when Congress returns to Washington, with mid-term elections just two months away, both parties will have ample reason to let the issue continue to worsen. 

President Obama has stepped up his criticism of Republicans over their failure to pass immigration reform in the House, and because Republican candidates for the House and Senate will essentially be running against Obama in the Fall, passing anything that might be interpreted as a compromise with the administration in the run-up to the election is a losing proposition for GOP candidates trying to energize their base. 

Related: A Long Wait at the Back of the Immigration Line 

On the other side, Democrats are desperately afraid of losing the Senate to the GOP, and know that the immigration issue is important to their voters in general and to the Hispanic vote in particular. By hanging back and blasting Republicans for inaction, they have a ready-made campaign issue that, they hope, will drive voters to the polls. 

Nobody can say for sure what the power structure in Washington will look like after the election. But it seems pretty sure that whoever is running the two houses of Congress will still have the immigration issue on their collective plate. 

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A longtime reporter on the intersection of the federal government and the private sector, Rob Garver is National Correspondent, based in Washington, D.C. He has written for ProPublica, The New York Times and other publications.