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How a Bush-Era Law Against Trafficking Impacts the Immigration Surge
Because of a 2008 law, thousands of children crossing into Texas illegally are not turned back right away.

Because of a 2008 law, thousands of children crossing into Texas illegally are not turned back right away. That’s because they must get an immigration hearing first – due to a federal law that passed with bipartisan support.

The legislation in wound through Congress in late 2007. A year later, President George W. Bush signed it into law. So why is it coming up now?

"The 2008 law is coming up now because it requires that unaccompanied children who are coming from countries other than Mexico or Canada be given an immigration court hearing and be placed with relatives or in the least restrictive setting possible until that hearing can occur," says Randy Capps, an immigration expert with the Migration Policy Institute in Washington.

The law’s primary aim was actually to combat sex trafficking. Capps says an amendment to the law that might be sought to give the White House more flexibility in deportations could allow Border Patrol to decide whether or not a child has an asylum claim or not, for example. But he adds that would defy the point of the law.

"The whole point of the 2008 law was that that’s not something that should be decided outside of an immigration court, where a full hearing is possible and where children feel comfortable and have a right to talk about their experiences and circumstances," he says.

Though this law’s adding many cases to an already backlogged immigration court system, some experts say changing this law alone wouldn’t reduce the thousands of children crossing the border illegally.

"This is a very complex issue and the reason children leave home is very complex, especially children," says Barbara Hines, co-director of UT’s Immigration Clinic. "So to … just change the law, or put more border patrol on the border, or that states take action to make sure children don’t cross, I think is a very un-humanitarian view of refugee crises."

Hines says children have a right to seek asylum status when they arrive here. And she says many will try to come back if they’re sent home, where levels of violence are dramatically higher.

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