The humanitarian crisis on the southern border is the center of a political firestorm in Washington. At issue is the bipartisan 2000 anti-trafficking law, signed by President Bush and re-authorized in 2008, that requires the Obama Administration to institute immigration court proceedings against unaccompanied children from Central American countries rather than deporting them without a hearing like children from Mexico. 

Both the President and Republicans have expressed a keen interest in stripping those provisions to enable the Administration to expeditiously deport children without the full panoply of due process protections. For the obvious reasons, most Democrats and immigrant rights advocates oppose the proposed change.

It simply shocks the conscience that the most vulnerable among us, children, and detained pregnant mothers, are being treated as a political inconvenience to be disposed of like yesterday’s polling numbers.

- Matthew Kolken

Given the confines of the law, like many Republicans, President Obama has expressed a desire to “eliminate delays in deporting children” that his Administration unilaterally determines have no legal option to stay in the United States. Unfortunately for the children, President Obama has neglected to acknowledge that there is a distinct legal option available to each refugee child fleeing violence in Central America, and it is within the President’s sole discretionary authority to exercise it. 

The Immigration and Nationality Act specifically provides that under 8 U.S. Code § 1157, INA § 207(b) the President maintains the express power to grant refugee status to groups of individuals in the presence of “grave humanitarian concerns,” or if it is otherwise in the national interest. If tens of thousands of unaccompanied children fleeing violence doesn't constitute a grave humanitarian concern, I don’t know what on Earth does.

To add insult to injury, not only is the President declining to exercise his authority to protect refugee children, his Administration is fast-tracking deportation proceedings, and children are being removed without the benefit of legal representation. This reflects a distinct policy shift by the Administration calculated to discourage children from fleeing violence in their home countries and an unconscionable decision to deport them back to an almost certain death.

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The American Civil Liberties Union and American Immigration Council have filed a nationwide class-action lawsuit on behalf of thousands of refugee children challenging the Administration’s failure to afford children an opportunity to obtain counsel as the law requires. The lawsuit begs the court to provide more time for children to find a lawyer, or to be provided representation at government expense if the Administration elects to proceed against them on an expedited basis.

Ahilan Arulanantham, Deputy Legal Director at the ACLU of Southern California and a Senior Staff Attorney at the ACLU Immigrants’ Rights Project, commented that the children named in the lawsuit are feeling violence in their home countries and “are now under imminent threat of being deported, potentially to their death, because of the Administration’s misguided ‘rocket docket’ policy for child refugees.” He remarked that “To force them to defend themselves against a trained prosecutor without legal assistance violates due process and our most basic values as a nation.”

But it gets worse. 

A recent release of a Freedom of Information Act request reveals that despite a 2010 policy against it, the Obama administration is detaining hundreds of pregnant women in detention facilities across the United States. The ignored policy provides that “absent extraordinary circumstances or the requirements of mandatory detention” women who are pregnant, nursing, or demonstrate that they are primary caretakers of children or an infirm person, should not be detained.

If only it stopped at detaining pregnant women. There are credible reports of expecting mothers being underfed, and being fed maggot infested food, while being denied gynecological exams and adequate prenatal care during pregnancy, in addition to being housed in unsanitary conditions in extreme temperatures.

It simply shocks the conscience that the most vulnerable among us, children, and detained pregnant mothers, are being treated as a political inconvenience to be disposed of like yesterday’s polling numbers, which incidentally are not good for the President. An Associated Press - GFK Public Affairs poll just released reveals that disapproval of the President’s immigration policy has jumped 18 points to 57 percent. Given the President’s handling of the current crisis, it is easy to understand why.

Democrats have been understandably quick to shame Republicans for their lack of compassion for children fleeing violence. Considering recent events, maybe it is time they start pointing fingers at the leader of their own party.

Matthew L. Kolken is an immigration attorney and a national immigration reform advocate. You may follow him on Twitter at @mkolken.

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