The Trump administration has begun a targeted push on Congress to fix what they describe as "loopholes" that allow unaccompanied migrant children coming into the U.S. to "game" the immigration system.
But neither Republican nor Democratic members of Congress have shown interest in addressing the loophole in a law the Senate passed unanimously a decade ago that was aimed at protecting immigrant children.
The "loophole" is in the way the law treats unaccompanied migrant children from South America. Those children are guaranteed a hearing before an immigration judge and allowed to stay with family or another "least restrictive" setting; unaccompanied migrant children from Mexico or Canada, however, get no such guarantee and can be deported more quickly.
Immigration bills that have included changes to the provision have been decisively shot down or have no chance of passing. A hearing on the issue last week was only attended by one Republican, who never advocated for changing the law during the hearing.
The Department of Homeland Security screens Mexican children within 48 hours of apprehension to determine if the child is a victim of trafficking or persecution in their native country, which means they have a claim to asylum or other humanitarian relief. If children do not meet that criteria, they are eligible to withdraw their applications and return to Mexico, which allows the system to process them quickly without going before a judge to make a claim for asylum.
Unaccompanied children from South American countries must be transferred to the Health and Human Services department within 72 hours of apprehension and are guaranteed to have their case considered by an immigration judge, in addition to screening for trafficking and persecution. While they wait for hearings, they have to be placed in the "least restrictive setting possible," and are typically placed with family members in the U.S. or in some sort of foster home, unless officials determine they need to be placed in a secure facility. Hearings can take months or years to proceed.
Stephen Miller, a White House senior adviser known for his anti-immigration views, argued in a press call Tuesday that the way the law treats immigrant children from South America amounts to "open borders" and that gangs and other bad actors were taking advantage of child smuggling to gain entry to the U.S.
"In attacking protections for unaccompanied immigrant children, the Trump administration has wrongly sought to portray them as being controversial ‘loopholes.’ This is just not the case. The laws provide basic humanitarian protections and due process rights to unaccompanied immigrant children," Sen. Dianne Feinstein, D-Calif., who pushed for the law signed by President George W. Bush in 2008, told McClatchy. She said before the laws were put in place, children were sometimes held in prisons and forced to wear prison uniforms and shackles, despite not being accused of any crimes.
"The drive to repeal (these protections) is coming from the White House, not congressional Republicans," Feinstein added. "I will not allow these protections to be repealed, and I believe my colleagues will stand with us.”
Since the Trump administration started their "zero tolerance" policy, which means anyone who crosses into the United States illegally could face criminal prosecution, more children are treated as unaccompanied as their parents or other adults with them are arrested. In just the first two weeks of the program, which was implemented by the Department of Homeland Security on May 6, more than 650 children were taken into HHS custody due to adults going through the prosecution process, according to U.S. Customs and Border Patrol officials.
The Trump administration wants to treat all unaccompanied immigrant children like Mexican children are treated, while immigrant advocates want everyone treated like South American children. During the call, Miller and other senior administration officials railed against Senate Democrats, saying they were blocking Republicans from fixing the loophole. That echoed a tweet by Trump himself over the weekend that blamed Democrats for the issue.
"The only reason they're not in law, those fixes, today are exclusively and solely because of Democrats and only because of Democrats in Washington," Miller said.
But it doesn't seem to be an issue of great interest to Republicans.
During immigration votes in the Senate in February, a bill that would've included that "fix," along with other immigration policies favored by the Trump administration, only earned 39 votes — with 14 Republicans voting against it.
A broad House immigration bill by Rep. Bob Goodlatte, R-Va., would also close the loophole and could get to the floor as the House scrambles to vote on immigration this summer. But even its supporters, such as chairman of the conservative House Freedom Caucus Mark Meadows, R-N.C., have said they don't believe it has the votes to pass. Moderate Republicans have said they would not support it.
A Judiciary subcommittee hearing on the issue last weekended with Sen. Thom Tillis, R-N.C., calling for "follow up" with immigration departments. But Tillis, the only Republican who attended the hearing, never spoke in support of changing the law.
"I'm one who believes I'd rather let 100 guilty people go than put one innocent person in prison, or subject them to an adjudication process," Tillis said at one point.
During that same hearing, Deputy Chief Richard M. Hudson of the U.S. Customs and Border Patrol testified 167 of unaccompanied immigrant children since 2012 had confirmed or suspected gang affiliations. That's out of more than 250,000 total unaccompanied children who crossed the border during that same time period, which amounts to less than a tenth of a percent.