Child endangerment: Florida preparing to charge parents who pay smugglers to bring kids to US

Florida’s Gov. Ron DeSantis last month filed a petition with the Florida supreme court requesting permission to impanel a statewide grand jury to investigate immigration-related criminal offenses in section 905.34 of the Florida Statutes, which includes child endangerment offenses.

Specifically, he seeks to prosecute for child endangerment parents who use transnational criminal organizations to smuggle their unaccompanied alien children into the United States.

Petition highlights

The petition notes that unaccompanied children who are brought here by transnational criminal organizations or other illicit actors are subjected to serious dangers. 

Many are assaulted, raped, kidnapped and/or killed. They are used to traffic drugs and weapons, as well as for laundering money. Unaccompanied alien children, especially the young girls, often are sexually exploited. And the journey itself is treacherous. Smugglers have to cross rugged terrain, which exposes the children to harsh environmental conditions.

Almost all of them who make it are placed with family members who are already in the United States. According to the petition, in the first six months of fiscal 2021, 91 percent of them were released to a sponsoring family member.

The number of unaccompanied alien children who have entered the United States and been placed with a sponsor is staggering: In fiscal 2021, it reached 107,686. The total so far in fiscal 2022, is 61,143. And, according to the petition, 11,145 of them were brought to Florida in fiscal 2021. The number has reached 6,659 so far in fiscal 2022.

The situation is made even more dire by the Biden administration’s failure to remove the undocumented immigrants who are here already.

Florida Attorney General Ashley Moody agrees with DeSantis. “As a mother, protecting children is close to my heart,” she said. “We cannot turn a blind eye to traffickers and smugglers exploiting the border crisis to subject children to extremely dangerous conditions.”

Florida supreme court’s decision

The Florida supreme court granted DeSantis’s petition.

It issued an order to impanel a statewide grand jury for a period of 12 months to investigate crime, return indictments, and otherwise perform all functions of a grand jury with regard to the offenses listed in section 905.34 of the Florida Statutes.  

The  decision provides examples of these offenses, such as –

• “(a) parents, guardians, or other family members of unaccompanied alien children who have conspired with transnational criminal organizations (TCOs) or other illicit actors to smuggle, and thus endanger, their children;” and …

• “(c) persons and organizations who are involved, directly or indirectly, in transacting with TCOs, their members, or other illicit actors to smuggle or traffic unaccompanied alien children or other illegal aliens to Florida.”

Possible defense against child endangerment charges

Presumably, parents who use smugglers to bring their children here from Central America think their children face more danger in Central America than they would on the journey to the United States in the care of the smugglers.

Would this be acceptable as a defense to criminal child endangerment charges under Florida law? 

I doubt it, but I am an immigration lawyer, not a criminal lawyer. I am sure, however, that the effectiveness of such a defense would depend on the circumstances in each case. And the circumstances would have to be established in criminal proceedings, which would subject the parents to a risk of a prison sentence if their defense is rejected.

Fear of being prosecuted on child endangerment charges may encourage parents who have or are going to bring their children to the United States in the care of smugglers to find another state to live in. In fact, this may be why DeSantis wants to be able to prosecute them. 

Moreover, the grand jury may identify other immigration-related offenses that are being committed by lawbreakers who will not arouse as much sympathy as parents doing what they have to do to give their children a chance to live in the United States. 

Are the unaccompanied children able to remain in the United States?

According to the Department of Homeland Security Fiscal Year 2020 Enforcement Lifecycle Report, only 4.3 percent of the 290,000 unaccompanied alien children who came here between fiscal 2014 and fiscal 2019, were returned to their own countries — 95.7 percent were still in the United States.

But only 28 percent of them were granted some form of relief. The rest presumably will live in the shadows of our society with the fear of being deported hanging over their head like the Sword of Damocles.

An alternative?

The persecution claims of unaccompanied children can be considered in their own or nearby countries.  This would make it possible for them to find out whether their claims are legitimate without having to make the dangerous journey to the United States in the hands of smugglers.

Biden has taken a step in that direction already. He restarted the Central American Minors (CAM) program to reunite qualified Central American children with parents who are lawfully present in the United States.

The original CAM program did not live up to expectations. According to the fiscal 2018 Proposed Refugee Admissions report to Congress, it was phased out because the vast majority of the participants were not eligible for refugee resettlement.

To be successful — and to help unaccompanied children — the program would have to be expanded.

With some exceptions, Biden’s CAM program just reunites qualified children with parents or legal guardians who are lawfully present in the United States. Biden would have to include all of the unaccompanied alien children if he wants the CAM program to be an alternative to making the dangerous journey to the United States.

This would only help unaccompanied children who have legitimate persecution claims, but our laws do not offer refugee status or asylum to the ones who don’t.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://www.blogger.com/blog/posts/2306123393080132994