Academic journal article St. Thomas Law Review

Bringing Operation Pedro Pan Back from Never Never Land: Is INA 207(b) the President's Solution to the Humanitarian Crisis at the Border?

Academic journal article St. Thomas Law Review

Bringing Operation Pedro Pan Back from Never Never Land: Is INA 207(b) the President's Solution to the Humanitarian Crisis at the Border?

Article excerpt

On June 15, 2012, President Obama surprised the entire nation when he announced the implementation of a new and groundbreaking program that would radically change immigration policy in the United States. (1) In conjunction with the U.S. Department of Homeland Security, the agency tasked with enforcing the country's immigration laws, the President would no longer pursue deportation proceedings against certain undocumented foreign nationals who were brought to the U.S. as children and who remain in the country without authorization. Referred to as "Deferred Action for Childhood Arrivals" or DACA, this program represents a landmark step by the Executive Branch to bypass Congress in order to institute immigration reform without passing new legislation. (2)

President Obama justified this decision, one that opponents criticized as an overstepping of executive branch authority, on the grounds that Congress had yet to take meaningful action towards resolving the issues in the country's immigration system. (3) According to the President, the implementation of DACA is rightfully viewed as a last resort due enacted only on account of the dire immigration-related situation facing him because of Congress's inaction. (4) It seems that the President is currently facing a similar dilemma wherein his only choices are to continue to wait for Congress or to take matters into his own hands with the stroke of the presidential pen.

The summer of 2014 has borne witness to a veritable flood of news coverage at the southern U.S. border wherein tens of thousands of undocumented and accompanied minor foreign national children are attempting to enter the country from South American nations. (5) Many of these children request asylum upon apprehension at the U.S. border. (6) Dubbed the "humanitarian border crisis" by the media, this tremendous influx of immigrant children is posing significant political, practical, and moral questions that the President and Congress have, at this time, been unable to answer.

While unaccompanied children continue to pour into the country by the hundreds, as of August 2014 the President has taken two actions to cope with this crisis. (7) First, the President has asked Congress to authorize an emergency grant of $3.7 million to establish new detention centers, hire more immigration judges, and perform heightened aerial surveillance at the border. (8) Second, he has pledged to fast-track the deportation proceedings of the children by accelerating their cases through the already heavily backlogged immigration court dockets. (9)

However, there may be a third option available to the President in his efforts to cope with the ever-growing unaccompanied minor children population and the unique immigration-related problems they have created. This option is found in section 207(b) of the Immigration and Nationality Act (hereinafter referred to as "Section 207(b)") which empowers the president, without the need for Congressional action or approval, to designate a population as "refugees" if the population is facing emergency circumstances in their home country. (10) By receiving the refugee designation, the children apprehended at the border could lawfully be admitted into the United States without prior immigration authorization, thereby legally eliminating the need for deportation processing. (11)

The choice to bestow refugee designation on the growing unaccompanied minor children population would no doubt carry far-reaching and long-lasting consequences of its own. Because of these potential important and complex ramifications, a closer examination of the implications of the President utilizing his authority under Section 207(b) must be undertaken. To do so, Part I of this article provides a brief description of the origin of refugee law in general and Section 207(b) in particular. (12) Part II explains the previous instances wherein past presidents exercised their authority to help foreign nationals seek refuge in the United States. …

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