Posted to the American Constitution Society Blog on August 15, 2014
The issue of unaccompanied children arriving at the U.S. - Mexico border has been the focus of a great deal of attention recently and presents unique challenges to our immigration system and the advocates who seek to help these children. The latest figures issued by U.S. Customs and Border Protection (CBP) show thus far in fiscal year 2014 (from October 1, 2013 – July 31, 2014), 62,998 unaccompanied children have been apprehended along the southern border. This is double the number of unaccompanied children apprehended in fiscal year 2013.
The majority of children who have been apprehended at the border are from the Northern Triangle of Central America: Honduras, El Salvador and Guatemala. These countries currently have, respectively, the first, fourth and fifth highest homicide rates in the world. Large areas of these countries are controlled by armed gangs, leaving children particularly vulnerable to violence. Children report gangs attempting to recruit them as early as age ten. These children are not just fleeing poverty; they are coming because they fear for their lives.
These children need support to begin to recover from the trauma they have endured. Yet advocates have raised significant concerns about the conditions in temporary shelters set up by the U.S. government. After children are apprehended by CBP, the agency must transfer custody of unaccompanied children to the Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services, within 72 hours of their arrest. Since the Homeland Security Act of 2002, ORR has been the federal agency that is responsible for the care and custody of unaccompanied children. For several years, ORR has operated temporary shelters throughout the United States to house children while ORR caseworkers seek to reunify them with family members or family friends in the United States.
In response to the dramatic increase in numbers of children apprehended by CBP, ORR opened three large facilities housed on military bases: Joint Base San Antonio – Lackland in San Antonio, Texas; Fort Sill Army Base in Oklahoma; and Port Hueneme Naval Base in Ventura, California. ORR announced at the beginning of August that due to slightly decreasing numbers of apprehensions, it would phase out the use of these three facilities over the next eight weeks. Advocates had raised significant concerns about the conditions in which children were held at these facilities and the difficulty in gaining access by attorneys and legal workers due to security procedures at these military facilities. There have been reports that ORR plans to open another large facility to house unaccompanied children in the El Paso, Texas area, but those are thus far unconfirmed.
After children are transferred to ORR custody, ORR case workers begin working to find a family member or adult family friend in the United States to whom the child can be released. Most children in ORR custody are ultimately released to family members around the country. While this is being portrayed as a crisis at the border, the reality is that these children will most likely be released to live all over the country. The child’s release does not mean the child has any status or permission to stay in the United States. The child will be placed in removal proceedings before an Immigration Judge and must qualify for some relief from removal – a way to remain in the U.S. legally – or he or she will be ordered deported.
A significant challenge is that children do not have the right to appointed counsel in immigration court; there is no public defender system in immigration proceedings. The child must either pay a lawyer to represent her, find a lawyer willing to represent her pro bono, or appear on her own behalf. Whether a child has an attorney has a dramatic effect on the likelihood she will appear in court. Recent data published by the Transactional Records Access Clearinghouse at Syracuse University shows that 90 percent of children with attorneys attend their hearings in immigration court. Children’s cases in immigration court are very complicated and difficult to win without representation. The most common forms of relief from removal for which children qualify are asylum for those who fear persecution in their country of origin and Special Immigrant Juvenile Status (SIJS) for those who have been abused, abandoned or neglected. Asylum claims require a tremendous amount of documentation and research to adequately develop the case. SIJS cases entail obtaining an order from a state court indicating that the child is under its jurisdiction due to abuse, abandonment or neglect, before the child can even take the next step to seek SIJS.
Access to counsel is a crucial issue for unaccompanied children. On July 9, Public Counsel, the ACLU of Southern California, the Northwest Immigrant Rights Project, and American Immigration Council, with the pro bono support of K&L Gates, filed a nationwide class-action lawsuit challenging the federal government's failure to provide legal representation for thousands of children who face deportation proceedings on their own. The plaintiffs in J.E.F.M. v. Holder include siblings from El Salvador – aged 10, 13 and 15 – whose father was murdered before their eyes; a 16-year-old boy from Honduras with special education needs who escaped the brutality exacted on his family; a 15-year-old boy originally from Mexico who has lived in the United States since he was about a year old; and a 14-year-old girl from El Salvador who was forced to flee her home country due to gang violence and threats.
What can you do? Take on a case pro bono or volunteer with a local agency to assist with screening children who are still in custody. While pro bono attorneys alone will not be able to represent every child who needs an attorney, they can help narrow the gap and put pressure on the U.S. government to respond fully to this humanitarian crisis. Contact me at firstname.lastname@example.org and I can help put you in contact with a local agency working on this issue. Keep your eye on Congress. When Congress returns in September, look for legislation related to this issue and contact your elected officials.
*Sarah Bronstein is Senior Attorney at the Catholic Legal Immigration Network, Inc., Training and Legal Support section