Despite assertions by Speaker of the House Nancy Pelosi that "women and children at the border are not a security threat, they are a humanitarian challenge — a challenge that President Trump's own cruel and counterproductive policies have only deepened," in fact, provisions in the recently passed spending bill (formally the "Consolidated Appropriations Act, 2019", H. J. Res. 31) will make that "humanitarian challenge" even worse, at least as it applies to children.
Specifically, section 224 of that act states:
(a) None of the funds provided by this Act or any other Act, or provided from any accounts in the Treasury of the United States derived by the collection of fees available to the components funded by this Act, may be used by the Secretary of Homeland Security to place in detention, remove, refer for a decision whether to initiate removal proceedings, or initiate removal proceedings against a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor of an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)) based on information shared by the Secretary of Health and Human Services.
(b) Subsection (a) shall not apply if a background check of a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor reveals—
(1) a felony conviction or pending felony charge that relates to—
(A) an aggravated felony (as defined in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)));
(B) child abuse;
(C) sexual violence or abuse; or
(D) child pornography;
(2) an association with any business that employs a minor who—
(A) is unrelated to the sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor; and
(B) is— (i) not paid a legal wage; or
(ii) unable to attend school due to the employment; or
(3) an association with the organization or implementation of prostitution.
Some background is needed to understand why this provision appears in an appropriations bill at all. As the Brennan Center for Justice explains:
Under a binding court settlement from the 1997 case Flores v. Reno, and subsequent federal legislation, the federal government is supposed to release children detained for immigration reasons as soon as practicable. In order to release the children, the government — specifically the Office of Refugee and Resettlement Services (ORR) within HHS — must identify a suitable sponsor, including conducting background checks on family members who come forward to sponsor children. Under an April 2018 agreement (which took effect in May) that formalized a practice begun in the summer of 2017, ORR started sharing the information it obtained from potential sponsors with Immigration and Customs Enforcement (ICE), which has used the information to arrest and deport potential sponsors who are alleged to be in the United States without proper documentation.
In addition, the government has begun collecting far more extensive information regarding potential sponsors than it was previously. DHS took over collecting fingerprints from HHS, and began collecting fingerprints of all adult household members of sponsors. DHS then issued a federal register notice explicitly allowing ICE to use this information for enforcement purposes.
One of the major lessons of September 11 is that when the United States government fails to share information internally, bad things can happen. In this particular instance, one of the bad things that could happen is that an unaccompanied alien child (UAC) could be placed in a household with an individual who would harm that child, or that the child could be otherwise exploited. That is after undergoing the horrors of being smuggled to the United States.
It should be noted that under the applicable law governing the placement of UACs, the term "unaccompanied alien child" is defined as:
[A] child who—
(A) has no lawful immigration status in the United States;
(B) has not attained 18 years of age; and
(C) with respect to whom—
(i) there is no parent or legal guardian in the United States; or
(ii) no parent or legal guardian in the United States is available to provide care and physical custody.
Despite this definition, according to the Congressional Research Service (CRS), in FY 2014, 58 percent of UACs who were discharged by HHS were sent to parents or other legal guardians. By definition, therefore, those alien minors were not UACs at all. This is a fact that has largely been disregarded by all involved, and for that reason I will not discuss it further.
Back to section 224. That provision is plainly intended to subvert the information-sharing between HHS and DHS contained in the April 13, 2018, agreement referenced in the excerpt from the Brennan Center, above. In essence, this new statutory provision would prevent ICE from placing an otherwise removable alien into removal proceedings if ICE were to do so based on information obtained by HHS.
Under its strict terms, ICE could still place "a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor" of a UAC into removal proceedings if ICE were to obtain information about the removability of that alien from some other source other than HHS, or could place such alien into removal proceedings if that alien fell within one of the exceptions listed in section 224. ICE, however, would be placed in the unusual position of knowing that an otherwise removable alien was removable and where that alien lived, but would be unable to use that information because it was obtained from a separate government department, HHS.
Many, if not most, UACs are not truly "UACs" under the statutory definition above, because they have parents or legal guardians in the United States and have themselves entered the United States illegally with the assistance, if not at the insistence, of that parent or legal guardian using a smuggler. Section 224 eliminates any danger for those parents and legal guardians to do so. In fact, it makes the United States government a co-conspirator in the criminal scheme between the smuggler and the parent/guardian.
This is a problem because smugglers are bad people, as I explained in a July 2018 post captioned "CBP Rescues Aliens from Smugglers: And other pictures you don't usually see". In addition, the journey to the United States for the vast majority of aliens who are currently seeking entry (that is, nationals of the so-called "Northern Triangle" countries of El Salvador, Guatemala, and Honduras) is perilous, as I explained in a later October 2018 post captioned "An Incredibly Violent Journey to the United States: The perils of illegal immigration".
In fact, the dangers associated with that journey do not end at the other side of the border. During my recent visit to the Southwest border, it was explained to me that loopholes in the current laws (which I detailed in a May 2018 Backgrounder) now make it easy for smugglers to do their jobs. This is because the smugglers do not actually have to guide the migrants they are smuggling into the United States (which would expose them to punishment under U.S. laws), for the simple reason that those migrants turn themselves over to the first law enforcement agents (usually Border Patrol) they encounter after crossing illegally. This often means those smuggled, however, have to evade the infrastructure that is in place to prevent illegal entry, a danger to those migrants.
For example, as I explained a February 10, 2019 post:
In FY 2018, the sector incurred more than $700,000 in medical care costs to cover 1,700 aliens who were apprehended and who had to be transported to the hospital. Among those who required medical care were a 17-year-old girl, who broke three vertebrae when her smuggler told her to jump from the top of a 30-foot fence, and her 14-year-old sister, who followed after her and fractured her ankle.
I was also told that smugglers would submerge smaller children, including infants and toddlers, into rivers and streams to get them past razor wire that otherwise prevents passage. Assuming that those children did not drown during this passage, those who are successfully retrieved on the U.S. side of the border often suffer lacerations and cuts from contact with the wire.
To recap, congressional Democrats put language into an appropriations bill that both makes it more difficult for ICE to do its job of apprehending aliens illegally present in the United States (for which, by the way, the appropriators did not include additional funding) while at the same time providing greater incentives for parents and legal guardians to pay to place children in the hands of some of the most vile criminals on the face of the earth.
Those Democrats are not really opposed to walls, so long as all they do is separate one department of the United States government from another.