The Refugee “Cover”

Location_South_AmericaThe border crisis and its flows of unaccompanied minors from Latin America crossing the border into the United States illegally have not ceased to draw attention. Initial claims by the Obama administration that these minors were victims of human trafficking have since been dropped and the case for smuggling upheld.

Other lines of inquiry have surfaced since, geared this time towards giving these children “refugee” status.  The rationale is straightforward if we listen to Rep. Joseph Crowley (D-N.Y.): “These are children who are coming across as refugees because of the violence that they are facing in their homelands.” FAIR’s Research Director, Eric Ruark, was among the first to find this type of argumentation unconvincing, noting that: “The recent surge in illegal immigration, including the increase in illegal alien minors…is the result of Obama Administration policies, and the continuing promises of amnesty from leaders of both parties in Congress, which has been noted by media outlets in Central America.”

A thesis supported by the Honduran first lady, Ana Garcia de Hernandez: “I want to be very clear about something: Violence and poverty have existed in our region for a long time. But what created this problem also has a lot to do with the lack of clarity in U.S. immigration policy.” Ultimately, Vice President Joe Biden had to dismiss the “violence argument” as well: “Nothing’s changed in six months or a year. The neighborhoods are no more violent or no less violent.” He, on the other hand, blamed the incoming flows of unaccompanied minors on criminals guilty of smuggling kids for financial gains.

Professor Raúl Hinojosa-Ojeda (a long-time advocate of open borders), attributes the recent incoming flows to the United States’ economic recovery:

“The global recession reduced migration to the U.S.; the economic recovery has prompted migration to resume. I predict that in the next three to four years, as the economy recovers even more, there will be twice as many children coming. Immigration is like a wave function, and this current rise is entirely driven by the decline in unemployment. The unemployment rate of Latinos in the U.S. has started to go down, so immigration has started to go up…”

Despite all the evidence to the contrary, the “refugee” classification has now been given the stamp of approval of the White House and President Obama is contemplating setting up a refugee program in Central America. Following the U.S. Citizenship and Immigration Services guidelines, refugee applicants must refer to the U.S. Refugee Admissions Program while still outside the U.S. If accepted into the program, they go through medical and background checks and follow a cultural orientation program before being admitted into the country. What the President is suggesting is screening children in Honduras to determine whether or not they qualify as refugee applicants; then flying those who do directly to the United States to avoid having them cross the border under dangerous conditions. These in-country screening programs are not common and were only used as a humanitarian recourse by the U.S. following the Vietnam War and the 1990 Haiti earthquake. Beyond the humanitarian calling, such displays of attention and resources are rather telling.

Why are these children commonly referred to as “refugees” and who, exactly, is a “refugee”?

The United Nations High Commissioner for Refugees (UNHCR), based on the 1951 Convention relating to the Status of Refugees and its 1967 Protocol , defines a “refugee” as: “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”

Following Article 14 of the 1948 The Universal Declaration of Human Rights (UDHR) which recognizes “the right of persons to seek asylum from persecution in other countries”, the United Nations Convention relating to the Status of Refugees was adopted in 1951 and came into force on 22 April 1954. The 1951 Convention was initially designed to deal with the mass upheavals of World War II and was limited to people who fled particular circumstances that occurred before January 1st 1951 in Europe. The 1967 Protocol widened the Convention’s scope to its actual universal coverage by cancelling its initial time and geography limitations.

The definition of a “refugee” and its legal implication are quite clear. Nonetheless, there is a general misuse of the terminology, as we have been witnessing lately by media correspondents and public officials alike. People invoke “refugees” when actually they are referring to “asylum seekers” (i.e. those who have not yet been granted refugee status).  It is important not to confuse the two terms.  According to the International Organization for Migration (IOM), an Asylum seeker (not to be confused with an “internally displaced person” (IDP), who fled but stayed within the borders of his/her country of origin) is:

“A person who seeks safety from persecution or serious harm in a country other than his or her own and awaits a decision on the application for refugee status under relevant international and national instruments. In case of a negative decision, the person must leave the country and may be expelled, as may any non-national in an irregular or unlawful situation, unless permission to stay is provided on humanitarian or other related grounds.”

Asylum seekers’ are either granted or denied refugee status. They become refugees ONLY if their claim for asylum is successful (based on proofs given and the situation in the countries of origin); if not, they may be returned to their country of origin.  There is often a process of appeal which allows them to stay in the receiving country until the appeal is heard and decided. The asylum seeking process is long and complex as it is often difficult for asylum seekers to get the required papers from their country of origin if they fled in a hurry.  This can hold up the process of deciding if they should be granted refugee status.

The Obama administration, as mentioned earlier, is in favor of calling these children “refugees” and helping them accordingly. As much as we agree that humanitarian concerns are at hand, we do not support such “discretional” use of international laws. First, these children are not YET refugees, they need to ask for asylum, become “asylum seekers”, and PROVE a “well-founded fear of being persecuted” before being granted this status. Moreover, there are serious doubts that the majority of these kids are in real danger forcing them out of their homes.

Even UNHCR could not find grounds for refugee statuses when, as early as 2006, it voiced concerns about unaccompanied or separated (a person under the age of 18, who is not under the care and protection of his/her parents, or previous legal or customary primary care-giver, but may be accompanied by other persons) children alongside the Southern border of Mexico. In a study carried out by their regional office for Mexico, Cuba and Central America with the collaboration of Save the Children Sweden, the children’s situation, levels of vulnerability and need for international protection were assessed. Their study’s main findings were as such:

“Although the vast majority of the 75 children interviewed in this study did not meet the criteria to be considered refugees, some of the children interviewed reported having been subjected to abuse, aggressions or assaults during their travels” (emphasis added).

Perhaps the situation has evolved since, but this is less than certain. If most children then (and probably now) did not “meet the criteria to apply for a refugee status”, why distinguish them as such and provide them with exceptional resources?

Following its extensive study, UNHCR came up with a list of recommendations for improving the protection of those children, urging, among other things, the Mexican Government to set the grounds for proper protection mechanisms. The Mexican Government, for the most part, did not follow through; that, at least, is certain.

Undermine the Constitution at Your Own Peril, Too

Constitution_of_the_United_States,_page_1The Founding Fathers designed the separation of powers in our Constitution to protect us from tyranny. And, of course, that’s by far most important function of the Constitution’s checks and balances. But President Obama is finding out that it also can protect a president from undue political pressure.

Before he decided that he would further rewrite the law to suit open borders pressure groups on his own, President Obama himself said to a protestor who interrupted his speech in San Francisco, “if in fact I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition.”

However, he had already shown, with his implementation of Deferred Action for Childhood Arrivals (DACA), an administrative version of the DREAM Act that failed to pass Congress, that to him, these were just empty words. Less than a year before implementing DACA, President Obama had in fact asserted that to do so would be a violation of the law. No wonder that open borders groups now brush aside assertions that he cannot simply do whatever they demand.

Now, though vulnerable Senate Democrats would prefer that the President not grant unilaterally before the election, there is little he can do to satisfy them without in turn angering the open borders pressure groups that believe there should be nothing stopping them from getting their way. As amnesty activist Lorella Praeli says, President Obama “has made certain promises to our community, and he has made those promises public.” She went on to threaten: “The truth is, nothing and no one will stand in the way of relief for our communities, and we will make sure everyone is held accountable.”

No matter what he does, President Obama is unlikely to satisfy every activist with a demand. For instance, some illegal alien pressure groups find a unilateral amnesty that excludes those with criminal records to be insufficient. But an amnesty that includes those with felony records is likely to cause even more distress to a public that has already rejected the President’s immigration policy, including some of the President’s own supporters.  If the President had not unlawfully rejected Congress’ Constitutional authority to write the nation’s immigration laws, he could have deflected some of this pressure from himself onto members of Congress. But now he can’t.

It turns out, as much as President Obama likes to lament the confines of the American political system, it could have helped him, as well as the public. President Obama, having taught his open borders supporters that American political constraints do not apply, has also taught them that they have only him to blame for failing to satisfy all of their ultimatums.

Waiting for Obama’s Next Move

Knight-chessNow that the House border bill is effectively dead on arrival, the waiting game begins for the next maneuver from the White House. Before leaving for the August recess, the House approved a measure that would amend the 2008 anti-trafficking law to eliminate the incentive for people to arrive here illegally and tie our immigration courts in knots. The Senate refused consideration by leaving town even before the House voted.

Large-scale executive action on immigration is imminent with one caveat: Obama’s supporters are becoming increasingly alarmed at the potential overreach of power. Last week, the Washington Post editors cautioned that “frustration over stalled immigration action doesn’t mean Obama can act unilaterally,” while further observing (that frustration) doesn’t grant the president license to tear up the Constitution.”


Since 2008, the president has dismantled most interior enforcement and extended benefits to illegal aliens by use of policy memos, stays of removals, prosecutorial discretion, deferred action, parole-in-place and executive actions that have enabled him to bypass Congress and circumvent the rule of law. Few of these mechanisms have a statutory basis and all are generally restricted for limited, rare, exceptional, and temporary actions in individual cases. But DHS, under the direction of the president, has applied each of these to broad classes of illegal aliens to make sure they avoid deportation.

In 2012, Obama put into place Deferred Action for Childhood Arrivals (DACA), an amnesty for illegal aliens aged 16-31. The program grants two-year stays from deportation and work permits. To qualify, illegal aliens must have arrived in the U.S. as a child and have either graduated school or be currently enrolled. Those requirements are arbitrary; there is no basis in regulation or statute that justifies DACA. Since Congress never vehemently objected, Obama has recently declared that the program will be renewed for another two years.

Obama Will Take One or More of These Actions, Soon

  • Obama could expand the current age range and/or lower the requirements of DACA, thus dramatically broadening the scope of illegal aliens who can remain in the country.
  • 550,000 young illegal aliens have already been granted deferred action. Obama might expand deferred action to the parents or the legal guardians of each. Doing so would affect the status of 825,000 illegal aliens.
  • The president could proclaim that any illegal alien who has a U.S.-born child will be given deferred action, thus expanding amnesty to 4 million more.
  • He could say any person who has overstayed their visa is no longer required under current law to leave the country, wait ten years and then reapply. Given that 30-40 percent of illegal aliens have overstayed their visas, 4.5 million illegal aliens could be given another bite at the apple.
  • Finally, Obama could pursue his plan of establishing refugee screening centers in Honduras and bring in thousands to the U.S. If successful, the program would be expanded to Guatemala and El Salvador. The White House has already floated this plan by leaking it to the New York Times.

What Can Stop Him?

The list of what Congress can do to stop the president is shorter than Obama’s seemingly endless tactics to thwart the law. Our constitutional system provides only limited options when a chief executive abandons his oath of office by failing to enforce the law and defend our borders.

  • Lawsuit. The GOP lawsuit does not include Obama’s abuse of executive authority in the immigration realm. Instead, it focuses on the president’s extension of the Affordable Care Act’s deadline requiring large companies to provide health care coverage for employees. Yet, Obama’s immigration abuses have clearly violated statutory law and congressional intent. Moreover, they are consistent with House Speaker Boehner’s statement defending the lawsuit in which he asserted that Obama “has overstepped his constitutional authority.”  Most likely, the omission of immigration in the lawsuit may be the handiwork of the U.S. Chamber of Commerce. That organization wields tremendous influence over House leadership and while the Chamber is opposed to Obamacare, they have relentlessly pushed for amnesty.
  • Congress could strip away any taxpayer money being used to carry out Obama’s various forms of amnesty although neither the Senate (as currently aligned) would approve such restrictions, nor the president would sign the bill.
  • Congress could add the concept of “deferred action” as a statue, define it, and then limit it. Here again, that bill would be rejected by both the Senate and the White House.
  • If Republicans were to pick up large majorities in the Senate and hold its majority in the House, in 2015 they could introduce legislation that effectively nullifies any executive action the president takes. A super-majority would override an expected veto. This scenario, however, envisions a massive change in the Senate which no one expects.
  • Impeachment. Political calculus appears to make this unlikely but a massive, unilateral amnesty for illegal aliens enacted by imperial edict could ratchet up public pressure on the GOP to act. After all, Article I, Section 8, Clause 4 of the Constitution clearly states that that Congress shall have power to “establish a uniform rule of naturalization.” The Supreme Court has interpreted this to mean Congress has the authority to regulate immigration, which it defines as the “determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” In the event the president acts unilaterally on a grand scale, it would be impossible for anyone to defend his actions as routine discretionary power. Rather, the action would spark a full blown constitutional crisis resulting from the president repeatedly and blatantly violating the separation of powers and recklessly usurping all congressional authority to regulate immigration.

Even Obama Has Limits However

Thankfully there are still some limits to executive power. The president cannot legislate, he can’t grant permanent immigration status and he can’t issue green cards. Even Obama understands these restraints. Limitations exist for executive orders as well. Unlike legislation, future presidents can reverse executive actions and even though illegal aliens may not be deported, they still can’t get citizenship without congressional approval.

A Step in the Right Direction

The last minute action by the House of Representatives, approving legislation to deal with the ongoing border crisis, will provide both needed funding and allow for quicker repatriation of illegal aliens who enter the United States and lack a valid claim to stay.

However, the bill does not address the underlying cause of the border crisis, which is the Obama administration’s systematic dismantlement of immigration enforcement, its defiant refusal to enforce most immigration laws, and its unilateral decisions to grant de facto amnesty to broad classes of illegal aliens.

The Supplemental Appropriation closes the loophole in the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which has had the perverse effect of encouraging human smuggling and mass illegal immigration of younger illegal aliens. The tweaks made to the TVPRA   assures that  that true victims of human trafficking will continue to be protected but  allows immigration officials to  deal quickly with minors and entire families  attempting to gain entry to the U.S. for purely economic reasons.

The Supplemental Appropriation authorizes additional funding for the National Guard to assist during this crisis and reimburses local governments that have been affected by the situation.  The bill provides additional money to detain and care for illegal aliens who are apprehended while attempting to enter the country illegally and also provides resources for additional judges to reduce backlogs and to repatriate illegal aliens who are not eligible to remain.

In a separate vote, the House moved to address one of the root causes of the flood of Central American illegal aliens when it voted to restrict expansion of the president’s Deferred Action for Childhood Arrivals (DACA) program.  Since the announcement of that program in 2012, the number of younger illegal aliens attempting to enter the country has grown exponentially.

“The bill that was approved this evening is a vast improvement over the one that was pulled from consideration on Thursday,” noted Dan Stein, president of FAIR. “It is not a perfect bill, but it is a positive step in the effort to regain some control over our immigration policies.

FAIR also applauds the House for its efforts to limit the unauthorized DACA program and prevent further abuse of executive authority to subvert enforcement of immigration laws.

“Unfortunately, the Senate leadership has indicated that they will not support similar legislation in that body. Instead, Senate leaders seem to want to spend additional taxpayer money to manage the crisis, rather than adopt the legislative and policy changes necessary to end the crisis,” continued Stein. “Moreover, it is becoming increasingly likely that the crisis Congress will face when they return to work in September will be exponentially greater than when they left.

“President Obama has signaled his intent to assert even greater discretionary authority to exempt as many as 5-6 million illegal aliens from immigration enforcement, and grant many of them work authorization. If he carries through on that threat, both Houses of Congress will have to address not only an even much greater immigration crisis, but an overt threat to the Constitution’s Separation of Powers Doctrine,” Stein concluded.

Why Did They Come Now?


Much analysis has been given to the factors that led to the surge in unaccompanied minors from three countries of Central America. The U.S. public and some Central American leaders have laid the blame on the doorstep of the Obama administration for raising expectations that the new illegal aliens would receive “permisos” (Spanish for “permits’)  to stay in the United States.

The administration has denied that the illegal newcomers would be able to stay, while at the same time refusing to revise the legal procedures for handling unaccompanied minors – other than from Mexico or Canada – that has contributed to the impression that once in the United States the illegal alien youth would be able to stay.

The Obama administration has tried to lay the blame on alien smugglers for what is being tagged as a misimpression that there is – or will be – some form of amnesty for the smuggled aliens. Is that a legitimate claim?

When it is kept in mind that the majority of the unaccompanied minors are coming to reunite with parents living illegally in the United States, it is logical to assume that the money funding the smuggling trips is coming from the parents. That implies that the surge in smuggled youth is a response to a surge in parents or other relatives in the United States arriving at the conclusion that now is the time to send for the youth to head north. If that is the case, the message about “permisos” does not originate with the smugglers, but rather with the illegal alien parents living here. Is the parents’ view in error?

The Obama administration policies clearly have contributed to the impression that illegal aliens will get to stay here. Those include a policy of interior enforcement that spares from deportation illegal aliens who do not run afoul of the law, efforts to enact an amnesty to grant them legal status, and the DACA unilateral action of the administration to give legal status and work permits to the so called “dreamer” illegal aliens. This confluence of actions by the administration could hardly leave any other impression on the illegal alien population than that now is the time to exploit the lax immigration enforcement policy of the administration.

Even now that the administration is trying to dig itself out of the hole it created by its policies, it remains to be seen whether the assertions that the newcomers are likely to be deported will change the impression that now is the time to head north. The fact that the White House backed off its initial statement of willingness to remove some of the protections against rapid deportation of unaccompanied minors in the 2008 trafficking victims act has sent the message that the administration is not serious about stemming the new tide of illegal aliens. The statements by President Obama that he is preparing to expand protection against deportation for non-criminal illegal aliens run directly counter to his get tough statements on the current illegal alien surge. And, if Obama can offer the DACA legal status to earlier arrived minors, the illegal alien population may rightly wonder why he can’t he do so as well for the newcomers.