Bringing Operation Pedro Pan back from Never Never Land: is INA 207(b) the president's solution to the humanitarian crisis at the border?

• Author: Callan, Emily C.
• Position: Immigration and Nationality Act of 1952

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. (13) Part III further details the humanitarian crisis at the border and provides an overview of the deportation proceedings facing the children if alternative congressional or presidential action is not taken. (14) Finally, Part IV discusses the possible effects of refugee designation under Section 207(b) and posits arguments both for and against looking to this little-known legal provision as a solution to the country's humanitarian crisis at the border. (15)

Although Americans on both sides of the political spectrum remain divided on exactly how to cope with the general undocumented population in the U.S., most citizens agree or acknowledge that undocumented children present special considerations and unique challenges for the country and its government. Granting refugee status would essentially use existing immigration law to allow the children to work around that law, effectively creating a loophole through which the children may come to and remain in the country. By examining the practical, legal and moral considerations at odds in this issue, we may begin to decide if Section 207(b) can offer a real refuge for these children.

PART I--"O, RECEIVE THE FUGITIVE": (16) EMPOWERING THE PRESIDENT TO DESIGNATE REFUGEES: THE ORIGIN OF SECTION 207(B)

In the context of U.S. immigration law, a refugee is currently defined as either

any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to ... that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or ... any person who is within the country of such person's nationality ... and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. (17) As this definition forms the basis of the President's decision to designate a population as refugees, it is helpful to outline how this definition came to be ensconced in U.S. immigration law. Therefore, the following sections provide a brief history of refugee law and policy, with a specific focus on the origin, development, and enactment of Section 207(b). (18)

1. THE STATUS OF REFUGEE ADMISSIONS BEFORE 1980

   In general, there was no comprehensive law that specifically regulated the admission of refugees into the United States before 1980. (19) Rather, in the early 1900s Congress enacted several pieces of immigration-related legislation that included refugee provisions, such as the immigration and Nationality Act of 1921, which exempted refugees who were fleeing religious persecution from the requirement that all aliens know how to read within one year of their admission into the United States. (20)

   At this time, Congress's legislation was largely context-specific and reflected the country's international relations with foreign countries to a large extent. (21) The Displaced Persons Act of 1948 provides a keen example of this reflection. (22) Passed in the wake of the World War II tragedies and at the beginning of the Cold War, this Act and its subsequent amendments granted refugee status to foreign nationals fleeing persecution in Soviet and Fascist countries, specifically Nazi Germany, Austria, and Italy, as well as other communist-controlled areas of Europe and the People's Republic of China. (23) Later, the Refugee Relief Act of 1953 included provisions to accelerate refugees' admission into the country if they were fleeing European and Soviet Union-controlled areas, (24) and the amendments to the Immigration and Nationality Act of 1952 specifically expanded the "refugee escapee" definition to include those fleeing communist and communist-dominated countries. (25) Thus, with these amendments, Congress included an ideological qualification in its refugee determination for the first time. (26)

   Notably, the Immigration and Nationality Act of 1952 also included a mechanism by which the President could admit refugees. (27) Specifically, section 212(d)(5) of that act enables the Attorney General to parole foreign nationals in the country for emergency reasons. (28) President Eisenhower used this authority to admit 15,000 Hungarian refugees during that nation's crisis in 1965. (29) President Kennedy again utilized this same provision in 1962 to allow the admission of more than 690,000 Cuban refugees between 1962 and 1979. (30) Subsequent administrations went on to admit refugees under the parole provision, including Presidents Ford and Carter who authorized the admission of refugees from the Far East, Soviet Jews, Eastern Europeans, anticommunist Chinese, and others. (31)

   Due to Congress's acknowledgement that its "piecemeal approach ... in reacting to individual refugee crises as they occur is no longer tolerable," (32) in 1980 the country's legislative body passed the first comprehensive refugee-related legislation in the United States--the Refugee Act of 1980. (33)

2. THE REFUGEE ACT OF 1980

   The path to adopting the Act began in 1979 when Senator Ted Kennedy and Congressman Peter Rodino introduced the draft bill into their respective branches. (34) Motivated by the desire to create a systematic process for refugee resettlement and integration into American society, the aim of the bill was also to replace the "patchwork of different programs that had evolved in response to specific crises." (35) The bill versions passed through their separate committees, the senators and representatives edited and added to the bills in ways that are outside the scope of this discussion, and ultimately, Congress passed the Act in early 1980. (36)

   The final and passed version of the Act explicitly delegated authority to the President (as opposed to the Attorney General) to designate special populations as refugees if there were emergency circumstances which warranted the designation. (37) The Act achieved a two-fold purpose...