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We Must Honor the Rule of Law for Desperate Children at the U.S. Border

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Some suggest that the refugee crisis unfolding on our southern border has been triggered by disrespect for the law. But, what exactly does the law require that we do with these desperate children?

The law provides, first, that we protect the basic rights of these kids, their physical safety, health and well-being. Second, we have an obligation to determine who among them has a legal right to stay and who must go. Finally, we must ensure that all such determinations regarding the immigration status and rights of each child are made with full respect for due process.
That is, in fact, what the law requires. Now, however, a consensus seems to be emerging between the White House and Congress to diminish the protection and due process rights of children.

The Trafficking Victims Protection Reauthorization Act, or TVPRA, currently provides a lower level of protection for claimants from so-called "contiguous countries" (basically Mexico) than it does for those from "non-contiguous countries" (basically everywhere else). Some in Washington would apply the lower ("contiguous") standard not only to Mexican children but also to other kids from Central America.

No judges, no lawyers, just a bus ticket.

But, TVPRA is not the problem. Nor is the problem one of enforcement. These children are not eluding authorities; they are seeking out authorities. They have come here not to evade U.S. law, but rather to embrace U.S. law and the protection it offers to victims of persecution, human trafficking and torture.

The U.N. High Commissioner for Refugees has determined that nearly 60 percent of children entering the U.S. may have a valid claim to international protection, whether here or elsewhere. Beyond refugee status, many unaccompanied children will be found to have other legal rights and claims. Indeed, it might shock Americans to learn that in one out of a hundred removal cases, immigration lawyers discover that their child clients are, in fact, citizens of the United States.

But, parsing through a child's case is no easy task, especially when the child is a victim of serious crime, or sexual or domestic abuse, or has grown up surrounded by extreme violence, or suffers from shock or trauma.

Maria (not her real name), a young girl from El Salvador, sits alone in a packed courtroom. When asked why she had travelled so far on her own to get to America, the quiet 11-year-old says simply, "I came to see my father." Days later, a pro-bono attorney gets the real story. Maria had been living with her 18-year-old sister in El Salvador. When the sister's "boyfriend," a local gang member, returned after serving only six months of a 25-year sentence for murder, Maria's sister tried again to leave him. The boyfriend held a gun to Maria's head and said, "If you ever leave me, I'll kill her." Then he pulled the trigger, with a deafening blast near Maria's ear, to make his point.

Every one of these unaccompanied children has a unique set of circumstances, and getting to the bottom of each child's story takes time. Proposals for "fast-track" hearings at the border would deny children any real opportunity to present their legitimate claims. Amending the TVPRA to lower the standards for yet more children or, similarly, to increase the administration's "flexibility" in enforcing the law, would only diminish the degree of due process afforded kids fleeing El Salvador, Guatemala and Honduras -- the "murder capital of the world."

Regardless of their origin, all children have the same right to due process before the law. We should guarantee "equality under the law" not by lowering standards for more kids, but by raising standards for all kids. If anything, the TVPRA should be amended to extend the modest due process rights now enjoyed by those from other countries to the unaccompanied children from Mexico, who suffer the same scourges of human trafficking, narco-trafficking and gang-related violence.

What's more, the most effective and efficient response to this present crisis would be to provide government-appointed counsel for each one of these children. Surprising new research shows that appointing counsel in immigration proceedings could actually save money for U.S. taxpayers.

The New York City Bar Association, working with WilmerHale and the economic consulting firm NERA, recently released an extensive cost-benefit analysis weighing the price of detaining immigrants who are going through removal proceedings against the price of providing those individuals with government appointed counsel. What NERA found was that the savings to the Federal government from detention, foster-care and transportation outlays alone would pay for most if not all of the cost of providing lawyers.

Why? Because for those with a legitimate claim, attorneys provide the evidence and arguments courts need to make quick decisions and avoid prolonged procedural delays, and for those who have no legitimate claim, attorneys counsel them to go home -- voluntarily. So, there is no need for prolonged detention or foster care. And, the study did not even count the savings that appointed counsel would generate from an estimated 87,000 fewer court proceedings and 115,000 fewer hours of court staff time.

Recognizing that the fastest, fairest and cheapest way to address this crisis is to empower courts and qualified attorneys to sort through the claims of these children and to do so according to the law, Representative Jeffries (D-NY), along with 14 co-sponsors, recently introduced H.R. 4936, which would provide appointed counsel not only for unaccompanied children, but also for immigrants who suffer from certain mental disabilities and whose capacity for self representation is similarly limited.

For too long now, we have neglected America's broken immigration system, but children should not be made to pay the price. Let each child find what it is she sought when, thousands of miles from our border, she took that first frightened step on a long, lonely and perilous journey. Let her find here in America one country that plays by the rules.

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