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Morality and the Law

Unaccompanied Migrant Children

by KARA KELLY

“Why can’t we just send them back?”

This has been the question (and solution) posed by many Americans, including our Congressional representatives, in response to the influx of unaccompanied migrant children at the southern border. Given the recent debates over immigration policy in the United States, this response is not particularly surprising, but the irony has become too thick to ignore.

A mere three months ago, a militant group called Boko Haram allegedly kidnapped over 200 young girls from their school in Northern Nigeria. Americans hastily began spreading the word of this tragedy and denouncing the actions of Boko Haram members. Through the use of the latest and greatest political tool – social media – celebrities and political leaders alike posted images of themselves holding signs that read: Bring Back Our Girls. As a nation, we felt both united and appalled on behalf of these innocent African schoolgirls. “Bring them back!” we cried. Yet when the world’s most desperate children, fleeing gang violence, starvation, and rape are placed on our front doorstep, we say: “send them back.” I’m no mathematician, but something doesn’t add up.

For starters, the United States prides itself on being the land of the free, a protector of those who cannot protect themselves. We are quick, if not the quickest, to condemn those nations that fail to uphold basic and internationally recognized human rights. Unlike thosecountries, we are the melting pot where all people may come and live freely. This is the very reason we are proud to be American and the core of our self-proclaimed identity. How is it possible, then, that Americans are blissfully unaware of the actual definition of human rights?

One need not be an expert in refugee law to understand the topic, but in the spirit of brevity, it would suffice to simply be aware of its central underlying principle: non-refoulement. This French term means, literally, “do not return them.” It also means that all (yes, all) immigrants have a right to remain in the United States if their home country’s government is failing to protect them from certain types of harm. This is a legal right, and it is no less concrete than the freedom of speech, press, and association found in the Constitution. It is nothing new. Decades ago, our country signed on to the United Nations Convention and Protocol Relating to the Status of Refugees, and consequently the obligation to protect refugees fleeing persecution. The text of our own domestic immigration laws mirrors the principles found therein as well. So when a United States Congressperson says we should send these refugee children back to the violence from which they have fled, it doesn’t just sound harsh – it sounds unintelligent.

But it doesn’t stop there. Some elected officials have even claimed that these children are flowing into our country due to the Obama administration’s recent implementation of DACA (Deferred Action for Childhood Arrivals). Politics aside, this is borderline comical. I cannot speak for all immigrant children, but I can speak for many. Aside from the fact that DACA would not apply to these children, they possess no awareness of “deferred” action, nor are they motivated by the administration’s enforcement measures, or lack thereof. They are fleeing Central America, home to the most dangerous countries in existence. And that’s not emotionally fueled hyperbole. According to the United Nations Office of Drugs and Crime, Honduras consistently tops the charts as having the highest per capita murder rate in the world. This ranking is a direct result of the country being controlled by criminal organizations, such as the Maras gangs, which extort “rent” from hardworking families. In the United States, we pay rent in exchange for a living space. In Honduras, you pay rent in exchange for your life and for the lives of your children.

Indeed, the trip through Mexico is also perilous, with children often riding atop trains and encountering rape, extortion, and abuse along the way. What good parent would send their child on such a formidable journey? Well, probably a parent who doesn’t want their child to remain in the most dangerous country in the world. There is no question that our treaty obligation – a promise to protect refugees – applies to every single migrant child sitting in a Texas detention center right now. They have reached American soil, and they have a right to receive protection if they qualify for it. This is not an argument based on morality – it is simply the law. The very idea of an undocumented immigrant crossing the U.S. border carries a stigma of criminality, but therein lies the paradox: if we send them back without a chance to be heard, we are the ones breaking the law.

Still need more irony? Pay a visit to the Statue of Liberty. You will undoubtedly see the words, beautifully engraved: “Give me your tired, your weak, your huddled masses yearning to breathe free.”

Kara Kelly is Vice President of the Immigration Law Students Association.