The Trump administration’s Centers for Disease Control and Prevention (CDC) determined that admitting certain aliens from Canada and Mexico created a serious danger of bringing COVID-19 into the United States — regardless of their country of origin — and accordingly issued an order temporarily prohibiting the admission of such aliens pursuant to its authority under sections 362 and 365 of the Public Health Service Act (pages 378 and 381). The order permitted the rapid expulsion of such aliens.
The Biden administration announced a temporary exception for unaccompanied alien children, pending the outcome of a public health reassessment of the order. Biden’s perceived lenience and news of his exception for unaccompanied children resulted in a surge at the Southern border.
The Border Patrol apprehended thousands of such children: 5,688 in January; 9,270 in February, 18,733 in March, and 16,933 in April.
Almost all of them originate from Mexico, Honduras, El Salvador, and Guatemala. Most — after a brief detention — are forwarded to relatives already living (legally or otherwise) in the United States.
While the U.S. is seemingly welcoming these children with benevolent arms, it’s doing them no favors in the long run. Their admission does not come with any formal status, which makes them all deportable at a later date.
Lawful status?
Only 28 percent of the unaccompanied children who entered between fiscal 2014 and 2019, were granted some form of relief. Most are living in the shadows of our society without legal status.
Asylum leads to lawful permanent resident status, but very few aliens from Mexico or Central America are able to establish eligibility for asylum. In fiscal 2019, only 3.4 percent of the asylum applications submitted by Mexican nationals were granted; 3.9 percent from Honduran nationals, 6.9 percent from El Salvadoran nationals, and 5.6 percent from Guatemalan nationals. The grant rate for all asylum applications processed in fiscal 2019 was 20.62 percent, which dropped to 19.12 percent in fiscal 2020, and was only 15.54 percent for the second quarter of fiscal 2021.
The unaccompanied children may become eligible for legalization if Congress ever passes a DREAM Act, but that isn’t very likely. The Democrats have been introducing DREAM Acts for 20 years, including years in which they controlled both chambers and the White House, and yet they haven’t passed one.
Realistically, the most that current unaccompanied children can hope for is that they will be able to participate in the Deferred Action for Childhood Arrivals (DACA) program, which also does not lead to permanent lawful status.
Mixed blessing
The information DACA participants provide in their applications is not supposed to be used for removal proceedings, but there are no guarantees. USCIS acknowledges this in its answer to Question 19 on its list of Frequently Asked Questions, which was updated on Feb. 4, 2021:
“Q19: Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes?
“A19: Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in the 2011 USCIS Notice to Appear guidance (www.uscis.gov/NTA) … The information may be shared with national security and law enforcement agencies … for purposes other than removal. This policy … may be modified, superseded, or rescinded at any time without notice … [emphasis added].”
This doesn’t mean that the information will be used for removal proceedings; just that it could be.
Increased vulnerability
Although the information in the files of DACA participants would be useful for identifying and locating aliens who are in the U.S. illegally, it isn’t needed to establish deportability. That can be established just by showing participation in the DACA program.
Participation establishes alienage and unlawful presence in the United States, which raises a statutory presumption of deportability under the provisions of section 1361 of the Immigration and Nationality Act (INA), the pertinent part of which reads as follows:
1361. Burden of proof upon alien
In any removal proceeding … the burden of proof shall be upon such person [the alien] to show the time, place, and manner of his entry into the United States [i.e., lawful admission to the United States] …. If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.
Moreover, if DACA participants have been in the United States for more than a year and haven’t filed an asylum application, they may be statutorily ineligible for asylum.
Section 1158(a)(1) of the INA provides that any alien who is physically present in the United States may apply for asylum, but subparagraph 1158(a)(2)(B) states that this “shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.”
There are exceptions in section 1158(a)(2)(D), but they require proof of extraordinary circumstances.
Biden’s decision to exempt unaccompanied children from the Trump administration’s CDC’s order is likely to do more harm than good.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.