By Debbie Smith
Daily media reports catalogue the exodus of children from Central America and Mexico and the U.S. response to this humanitarian emergency. The conditions in the children's home countries, the apprehension and detention of the children upon their arrival in the United States, and the children's legal rights in the United States are subjects worthy of lengthy reports. (See A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System by the Center for Gender & Refugee Studies and Kids in Need of Defense; Children on the Run by the UNHCR). This article will provide an overview of these issues and focus on the children's legal rights. However, proposed legislation to limit the existing safeguards for the children and new interim rules to expedite the adjudication of the children's cases may make the protections available today unavailable tomorrow.
Conditions in Home Countries - Why Are Children Fleeing
In the aftermath of the Central American civil wars of the 1970s and 1980s, the Northern Triangle countries – El Salvador, Guatemala and Honduras – today experience some of the world's highest homicide and crime rates. With murder rates 90.4 per 100,000 people, Honduras is currently the world's most deadly country. A child is safer in Afghanistan or Iraq than Honduras. A UNHCR report points to "violence in the region by organized armed criminal actors, including drug cartels and gangs or by State actors" as one of the primary reasons for the children's flight.
In his testimony to the House Judiciary Committee on June 25, 2014, Bishop Seitz explained that poverty alone does not account for the increase in the number of unaccompanied children coming to the United States from El Salvador, Guatemala and Honduras. While neighboring Nicaragua is poorer than some of the sending countries, its own children are not traveling to the United States in significant numbers. Rather, Nicaragua is receiving some of the children fleeing El Salvador, Guatemala and Honduras.
Finally, the legacy of the United States support for the military in Central America during the civil wars, its unwillingness to grant asylum status to refugees from the Northern Triangle, and its practice of deporting gang members back to their home countries cannot be overlooked in understanding the pervasive conditions of violence and drug activity in this region.
Definition of an Unaccompanied Minor - Who is an Unaccompanied Child
The immigration statute defines who is a child in INA § 101(b)(1). Under the INA, a child is an unmarried person under age 21. Title 6 of the U.S. Code (“Domestic Security”) defines an "unaccompanied alien child" as a person who has no immigration status in the United States, is under the age of 18, and has no parent or legal guardian in the United States who is available to provide physical care and physical custody. 6 U.S.C. § 279(g)(2). Children without immigration status who enter the United States with a parent or other closely related adult are not considered to be unaccompanied children. The protections that accrue to unaccompanied children do not apply to those who enter the United States with a parent or closely related adult.
Rules and Laws Governing Unaccompanied Children
What is the Flores Settlement, the Orantes Injunction, the Homeland Security Act of 2002, and the TVPRA
The Flores Settlement
In the 1980s immigrants' rights organizations challenged the government's treatment of unaccompanied children. Children were detained in prison-like settings where they were placed in cells with unrelated adults of both sexes and were vulnerable to abuse by guards and other prisoners. As a result of a lawsuit, the Flores Settlement Agreement established a policy for the detention, treatment and release of unaccompanied children. Fundamental to the Agreement is the notion that a favored policy is the release of children from detention. The Flores Settlement required the government to provide basic humane detention conditions, including food and drinking water, medical assistance, toilets and sinks, adequate temperature control, proper supervision and separation from unrelated adults. Despite the Flores Settlement, unaccompanied children continue to be subject to appalling confinement conditions. See June 11, 2014 complaint (below).
The Orantes Injunction
The Orantes injunction, based on a class-action lawsuit filed in 1982 on behalf of Salvadorans in immigration custody, provides certain procedural protections to Salvadorans in detention. The injunction requires the government to: 1) ensure that class members have access to counsel and to private attorney-client communications while in detention; 2) allow class members to receive and possess legal materials; 3) give class members adequate access to law libraries; 4) give class members access to writing materials; 5) refrain from using coercion when processing class members; 6) give class members a specific advisal of their rights; and 8) make telephones available to detained class members. In November 2007, the court affirmed that these provisions of the injunction continued to apply to Salvadorans in immigration detention.
On July 17, 2014, counsel for the Orantes class obtained a court order granting plaintiffs’ lawyers access to the Nogales, Arizona processing center to interview Salvadoran children held in detention. The court noted that as of July 11, 2014, there were 968 unaccompanied children housed at the Nogales center, of whom 330 were Salvadoran.
This most recent order demonstrates the continued relevance of the Orantes injunction protections to the treatment of unaccompanied Salvadoran children.
The Homeland Security Act of 2002
The Homeland Security Act of 2002, codified in 6 U.S.C., created the Department of Homeland Security (DHS), defined "unaccompanied alien child," and delegated the coordination and care of unaccompanied children to the Department of Health and Human Service (HHS). The Office of Refugee Resettlement (ORR), within HHS, operates about 100 short-term shelters throughout the United States for unaccompanied children. ORR recently opened temporary shelters to accommodate the increased detention of unaccompanied children. The temporary shelters are at Joint Base San Antonio Lackland (Texas), Naval Base Ventura County-Port Hueneme (California), and Fort Sill (Oklahoma).
Under the statute, HHS also is responsible for maintaining and publishing a list of legal services available to unaccompanied children, collecting statistical information on unaccompanied children, and reuniting children with their parents abroad if possible.
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, the TVPRA, extended and modified certain programs to prevent and prosecute human trafficking and protect the victims of trafficking and slavery. It also set forth requirements for the treatment of unaccompanied children and created substantive and procedural changes for unaccompanied children seeking relief from removal. Some of the protections available under the TVPRA apply to all children regardless of their country of origin. But most of the critical safeguards of the TVPRA affecting unaccompanied children deny those protections to unaccompanied children from Mexico or Canada (“contiguous countries”). Thus under the TVPRA, unaccompanied children are treated differently depending on whether they are nationals of “contiguous countries” (Mexico and Canada) or nationals from any other country (“non-contiguous countries”).
The TVPRA protections that are available to unaccompanied children who are not from Mexico or Canada include safeguards regarding apprehension, transfer, and other procedural and substantive benefits. Under the TVPRA, children who are nationals of “non-contiguous” countries must be screened within 48 hours of arrest, transferred to ORR custody within 72 hours, and permitted to apply for relief without being subject to expedited removal. Similarly under the TVPRA, HHS is required to ensure that “non-contiguous” unaccompanied children have legal counsel for all proceedings "to the extent practicable" and consistent with the immigration statute. HHS is also required to work with the Executive Office for Immigration Review (EOIR) to ensure that custodians of unaccompanied children receive legal orientation presentations, that children are placed in safe and secure placements, and that independent child advocates are appointed where needed. All of these procedural and substantive safeguards apply only to the unaccompanied children who are nationals of “non-contiguous” countries – they do not apply to unaccompanied children from Mexico or Canada.
On the other hand, the TVPRA also clarified the definition of Special Immigrant Juvenile status (SIJS), and provided protections to unaccompanied children applying for asylum whether those children were nationals of “contiguous” or “non-contiguous” countries.
Apprehension and Detention - What Happens When Children Arrive
Children arriving at the border of the United States, whether at an official port of entry or through a land border without permission, are screened by CBP to determine whether they fall within the definition of “unaccompanied alien children” (See above). Children meeting this definition are treated differently with respect to their apprehension and detention, depending on whether they are nationals of Mexico and Canada or children who are nationals of any other country.
Children From Mexico or Canada
Unaccompanied children entering the U.S. without permission who are nationals of contiguous countries, Mexico or Canada, are screened by CBP officers to determine whether they: 1) have a possible asylum claim; or 2) are potential victims of trafficking and 3) are able to make an independent decision to voluntarily return to their home country. Unaccompanied children who have a possible claim of asylum or trafficking must be evaluated for possible relief in the United States. After finding that children have a possible claim – or if no evaluation of the three criteria can be made within 48 hours – CBP is required to immediately transfer the children to the ORR for custody. There they will be processed as if they are from non-contiguous countries.
However, children who do not meet the criteria for protection are returned to their home country "voluntarily." The "voluntary return" does not subject the children to removal proceedings and the negative consequences of deportation. DHS must notify the appropriate Mexican or Canadian consular official and permit the consular official to visit the detained children. Often the consular official will coordinate the return of the children in conjunction with the home country's child welfare agency.
Children from All Other Countries
Unaccompanied children who are nationals of non-contiguous countries cannot be immediately returned to their home country. After children are apprehended, they are taken to a CBP short-term detention facility for processing. CBP has been criticized for placing children in sub-standard facilities and for failing to provide them with humane treatment. A recent formal complaint filed by a coalition of immigrants' rights organizations on June 11, 2014, stated that children were held in unsanitary, overcrowded, freezing-cold cells, and subjected to physical and sexual abuse. In addition, June 2014 news reports noted the warehousing of children at a CBP facility in Nogales, Arizona where the environment had the "feel of the livestock areas at a state fair."
Under the TVPRA, CBP is required to transfer children who meet the definition of "unaccompanied child" to the custody of ORR within 72 hours of their arrest by CBP. Children in ORR custody may be housed in four kinds of detention facilities -- from least restrictive settings to jail-like settings. The type of custody setting must be based on the children's best interests, the least restrictive setting possible, and security risks. Children found to be eligible for reunification with an adult sponsor in the United States may be released to a parent, legal guardian, family member, or other responsible adult. If release is not possible, ORR is responsible for coordinating the placement of children in licensed care facilities or foster care.
Children in ORR custody are placed in removal proceedings and must be provided access to counsel "to the greatest extent practicable." ORR is required to "make every effort" to utilize the services of pro bono counsel to represent children in removal proceedings without charge. On July 9, 2014, immigrants' rights organizations filed a lawsuit, J.E.F.M. v. Holder, charging that the Fifth Amendment due process clause and the Immigration and Nationality Act’s provisions mandating a "full and fair hearing" before an immigration judge require the government to provide children with legal representation in their deportation hearings.
Immigration Remedies for Unaccompanied Children
Some unaccompanied children may be eligible for Special Immigrant Juvenile Status (SIJS) assuming they are screened-in to the United States. Under the INA § 101(a)(27)(J) and the TVPRA, SIJS allows children who have been declared dependent on a state juvenile court and for whom the court determines that it would not be in the children's best interest to be returned to their home country and to be reunited with parents due to abuse, abandonment, or neglect to apply for legal residency. In order to be eligible for SIJS, children must be under 21 at the time of filing the I-360 petition for SIJS, unmarried at the time of the adjudication, and inside the United States at the time of filing the I-360 petition.
Section 235(d)(7) of the TVPRA instituted additional protections for unaccompanied children applying for asylum. Unaccompanied children are not subject to the requirement of filing an asylum application within one year of entering the United States. Also, an asylum officer, rather than an immigration judge, has initial jurisdiction over any asylum application filed by unaccompanied children. In addition, for purposes of asylum as well as other forms of relief, the child's status and developmental needs should be taken into account. This provision applies to unaccompanied children who are nationals of non-contiguous countries. It also applies to unaccompanied children who are nationals of contiguous countries, Mexico and Canada, provided that CBP finds that the children have a possible asylum claim. However, serious concerns have been raised about CBPs screening of possible asylum claims.
Other Forms of Relief
Legal remedies available to adults are available to unaccompanied children who meet the eligibility requirements for the relief. Family-based immigrant petitions, U and T visas for victims of crimes and trafficking, VAWA self-petitions or VAWA cancellation of removal, and Temporary Protected Status are all forms of relief that should be considered in cases involving unaccompanied children.
The plight of unaccompanied children fleeing violence and danger in Central America and Mexico mandates that the protections afforded by the TVPRA continue unchanged and that other avenues of relief be offered to address the needs of this vulnerable population.