Trafficking law largely inapplicable to border crisis

Despite all the attention it has received, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 — a law aimed, in part, at "unaccompanied alien children" who are victims of trafficking — appears to have little applicability to the current situation on the border. As such, the Obama administration should not be applying the law and granting protections that are supposed to benefit trafficking victims to people who are willing participants in human smuggling operations. This is an issue I explored in a new report.

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There are at least three reasons why the Obama administration is wrong when it asserts that the 2008 trafficking law binds their hands and requires them to grant most young illegal immigrants and their families a day in immigration court, lawyers and other benefits.

First, it appears that a significant majority of children coming across our borders illegally are not "unaccompanied alien children" according to the definition found in federal law. Federal law defines an "unaccompanied alien child" as an illegal alien under the age of 18 who is without "a parent or legal guardian in the United States." Data from government agencies suggest that the overwhelming majority of minors arriving on the U.S. border have family in the United States.

According to advocates and media reports, around 90 percent of non-Mexican and non-Canadian children coming across the border are placed with family or guardians in the United States. Department of Health and Human Services (HHS) Secretary Sylvia Burwell recently testified that approximately 55 percent of released alien children are released to parents and another 30 percent are released to other family members, bringing the total to 85 percent of such children being released to family. Mark Greenberg, acting assistant secretary within HHS, recently testified that, thus far in fiscal year 2014, approximately 95 percent of children released went to a parent, relative or non-relative sponsor. Still, better data from the Obama administration would be helpful.

Second, there is little evidence that the recent arrivals are victims of trafficking, which generally involves coercion. Instead, families and their children are willing participants in smuggling operations, having paid smugglers to bring them into the United States. As U.S. Immigration and Customs Enforcement explains, "Human trafficking and human smuggling are distinct criminal activities, and the terms are not interchangeable." Yet the aim of the 2008 trafficking law (and related laws) is to prevent people from becoming victims of human trafficking and to protect women and children who are often the targets of human traffickers. The Trafficking Victims Protections Act of 2000 explains that a "victim of trafficking" is a person subjected to an act or practice such as sex trafficking or "involuntary servitude, peonage, debt bondage, or slavery."

While it is likely that some of the illegal immigrants who have recently arrived at the U.S. border were subject to difficult, if not horrific, situations, it is incorrect to refer to them as "victims of trafficking" and apply trafficking laws without evidence that they are, in fact, victims of trafficking.

Third, even if all people coming across the border illegally were "unaccompanied alien children" and victims of trafficking, the 2008 act includes language that gives the president some leeway in its application. The law requires "[e]xcept in the case of exceptional circumstances" that any department or agency of the federal government that has an unaccompanied alien child in custody to transfer the custody of such child to the HHS secretary within 72 hours after determining that such child is, in fact, an unaccompanied alien child. The HHS provides additional benefits to the individuals. Sen. Dianne Feinstein (D-Calif.) recently told Department of Homeland Security Secretary Jeh Johnson at a Senate hearing that the "exceptional circumstances" provision would allow President Obama discretion in how the law is applied in light of the current influx of illegal immigration. In other words, the law does not necessarily require that all recently arrived illegal immigrants receive a day in court.

Again, better information about the demographics of people coming across the U.S. border would be helpful in crafting the appropriate political and legal response, but thus far the Obama administration has not been forthcoming with information. From the information available, it appears that the 2008 trafficking law is largely inapplicable to the massive smuggling problem occurring along the U.S. border.

Feere is a legal policy analyst at the Center for Immigration Studies.