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Refugee Crisis in the Southern U.S.

The current influx of refugee children and families entering through the Southern U.S. border has little to do with the lack of Comprehensive Immigration Reform or congressional inaction. It has everything to do with the lack of U.S. leadership and investment in the region. The United States can no longer afford to neglect the problems in its own hemisphere.

The U.S. has been here before. During the early 1980’s the United States received millions of refugees from Central America fleeing death squads in El Salvador, violence in Nicaragua, and other countries as well as a natural disaster in Guatemala. Then, as now, the government’s initial response followed public opinion and was insensitive and inappropriate.

Early in the crisis a Presbyterian pastor in Arizona endured federal prosecution for trying to aid suffering refugees. The pastor’s treatment launched what came to be known as the “Sanctuary Movement.” Later the government designated El Salvador and Guatemala as eligible for humanitarian protection under Temporary Protected Status “TPS” (explained in more detail later).

Most of the unaccompanied children and families currently coming to the United States are REFUGEES, not “Illegal’s breaking our laws,” they are fleeing the same type of terrible conditions including death and persecution at home as the previous generation of the 1980’s.

While we have been preoccupied with wars in Kuwait, post 9/11 terrorist defense, Iraq, Afghanistan, and Libya etc. the drug cartels and the murderous extortion rings have been ravishing our neighbors to the South. Now the result is spilling over our Southern border. Perhaps the United States should have stayed engaged in the hemisphere?

Now, to curb the western hemisphere refugee flow, the United States must reengage and do significantly more to help Mexico, Central, and South America fight stronger, more sophisticated crime and cartel violence. The U.S Government must use its significant political clout to redirect international attention, and establish high priority goals to fight the crime and violence in our hemisphere and in particular Mexico and Central America.

The unaccompanied children coming to the U.S. are not coming here by choice, they have few other options. One mother expressed her feelings like this (paraphrased) "I would rather have my children die trying to find safety in the U.S. than to have them gunned down by the cartels at home." These families do not want to be separated. They simply want to live.

Again, these unaccompanied children and their families are refugees fleeing desperate and violent conditions in their homelands. The U.S. just happens to be their best hope for survival because we are in relatively close proximity to their homeland.

There is little difference from the terrible situation in Syria, with million's of refugees pouring into Jordan, Turkey, Lebanon etc. than for refugees from Mexico and Central America desperately trying to find safety in the U.S. I have heard some say that we should "send them all (the refugees) back to their home countries." where they face near certain death or persecution? I think not. We are better than that. We are America!

Using the current influx of refugees in the form of unaccompanied children and families as justification, the president recently announced that he will take action without congressional cooperation. Make no mistake, U.S. immigration law and policy is a mess that desperately needs comprehensive reform. But let’s not mix the current humanitarian situation with the political problem playing out between the president and congress. The president's announcement that he is going it alone begs the question, what can the executive branch do (constitutionally) in situations such as the current influx of refugees?

The U.S. already has effective laws and legal processes in place to protect refugees who find their way to our shores and borders. As for the current "crisis" involving unaccompanied children and families we do NOT need more laws!!! We certainly need a comprehensive solution to solve a number of other perplexing immigration problems but, that is a separate discussion.

Under the Immigration & Nationality Act, INA section 244, The Secretary of the Department of Homeland Security (DHS) may designate a country, or portions of a country, for TPS when conditions exist such as an ongoing armed conflict or an environmental disaster in the country that temporarily prevents the country's nationals from returning safely. While not required, typically a country must first request TPS before the Secretary will make a designation. Once a country receives a TPS designation, nationals of that country residing in the U.S. receive a temporary, humanitarian form of relief from deportation that does not include the granting of permanent residence. The initial TPS designation lasts for a period of 6 to 18 months and can be extended if conditions continue to support the designation.

Asylum is another process that could be used by the executive branch to protect refugees. However, asylum may not always be appropriate, particularly in the current "crisis" involving children refugees, separated from their families, where the crisis at home may resolve within a reasonable time. Having said that, asylum may well be appropriate in many situation where desperate families are fleeing specific threats against them or their families.

Perhaps it is time for the Secretary of Homeland Security to reopen registration for Honduras, Guatemala, and El Salvador, and perhaps add certain states of Mexico for TPS with or without invitation from the relevant countries. TPS is certainly NOT amnesty. It is a humanitarian relief designation only employed in times of desperate humanitarian crisis. TPS designation is certainly "something" the administration could do immediately. Finally, the U.S. is a signatory on several United Nations Charters that require us to give refuge to those seeking protection from death and persecution.

Let's stop the anti immigrant rhetoric and set aside partisan politics. In the 1980's we received several million of refugees from some of the same countries. Then, for the most part, the United States disengaged as a Geo-political force in the hemisphere and there are consequences we now must pay.

In summary, the United States is receiving much smaller numbers of refugees now than during the 1980’s. We can and we should receive these desperate children and families and offer them temporary protection. Going forward however, the United States MUST, as a matter of national security, shift its focus to solving the underlying problems in the hemisphere.

Win Eaton, Esq.
Certified Specialist in Immigration & Nationality Law
State Bar of California, Board of Legal Specialization
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