The children trying to cross the U.S.-Mexico are not refugees. That is, they are not fleeing oppression due to their race, religion, nationality or membership in a “social group,” the criteria for refugee status under the Immigration and Nationality Act (INA) and our refugee treaty obligations. They are being sent here by their parents who are already here and paid smugglers to bring them to the border and surrender them to Border Control agents. (Previously smugglers had to actually cross the border. Their task has been shortened.)
The parents are taking the chance the children won’t be returned. But the risk of that grows smaller by the day. They are hoping and expecting the President will issue a decree which allows them and millions of other illegal aliens to remain here without fear of deportation and possibly also be authorized for employment. This loose talk of executive action on immigration has set off the current crisis.
The expectation of such a decree by the President is hardly wild speculation. Two years ago he did the same thing for the benefit of young illegals who had been brought over by their parents before they were 18. It was called “deferred action” and basically lets them live here for the rest of their lives without being deported and to be allowed to work without a social security number. The President had no legal authority to do that. He called it “prosecutorial discretion,” the right of the executive branch to choose the worst offenders among a group too big to deport immediately. But discretion is one thing; issuing official government documents conferring the right to live and work here is something else. He went beyond his legal authority to enforce the INA. He changed it.
No consequences for that lawless decree followed. Neither the President nor the Director of the Department of Homeland Security, in charge of deportations, was called to account by Congress much less impeached, and Congress did not act to undo what the President decreed. So more would-be illegal immigrants have rightly concluded that the next Presidential decree of amnesty might cover them or their children. The President has been hinting he will have to “act” on immigration because the House will not do as he wishes and enact “comprehensive immigration reform.” Most Americans probably paid no attention to those statements since May. But he was not speaking to most Americans. He was speaking to that part of his political base that is here illegally. And the message was received. They promptly enlisted smugglers to bring over their children. We have been invaded/inundated ever since.
President Obama cannot say we will let them all stay indefinitely. The public is not in favor of an open border. So he says we will be “compassionate,” give every child an asylum hearing (to which they are not entitled because nobody believes they fall into one of the refugee categories identified above), and then release them to relatives here. Notice he did not say relatives who are here legally. So the upshot is the illegal children will be turned over to their illegal parents, fail to show up for their asylum hearings and live out their lives here. They don’t really need any presidential decree. The Obama DHS will generally not deport illegal immigrants unless they commit a felony after their arrival. But if a decree is issued, they might even be able to legally work in this country, something the INA does not allow. And if that is not forthcoming, they will end up working illegally.
For the most part the children who have made it here will never be sent back. The President has accomplished what his well-chosen words about “action” were calculated to accomplish.