In 2014, a record number of unaccompanied children crossed the southern border of the United States, creating a humanitarian and political emergency for the Obama administration. The US response was swift, but also short-sighted. While increased cooperation with Mexico decreased the number of children reaching the US, and faster court dates ensured already-arrived children passed through the immigration system more quickly, neither action addressed the root cause of migration or properly protected these children’s human rights. The US both can and should do more to protect Central American children who have chosen to make the dangerous journey to the United States.
The average American would be forgiven for assuming that the unaccompanied child crisis had passed by 2015. Unlike last summer, there has been no ‘surge’ of arriving children dominating the news cycle. Indeed, only 18,000 children have been taken into US government custody so far this year, compared to 57,000 in the same period last year. However, this drop in arrivals has not corresponded with an improvement in the conditions driving child migration. As the United Nations High Commissioner for Refugees (UNHCR) concluded last year, the majority of child migrants attempting to reach the US are fleeing pernicious gang violence in the northern triangle countries of Guatemala, Honduras, and El Salvador. This violence has continued in 2015, causing large numbers of children to continue attempting the long and often dangerous trip to the United States.
The primary difference between this year and last year is the 56% increase in the number of children detained and deported from Mexico before they even reached the United States. Over the past year, Mexico has implemented a new border protection plan, which has significantly increased the number of Central American migrants detained and deported upon entry into Mexico. President Obama praised these efforts in a January meeting with Mexican President Peña Nieto, and the US also provided Mexico with $194 million in security assistance in FY 2014 to strengthen border protection, among other goals.
While Mexico’s increased border protection has effectively limited the number of migrants reaching the US, advocates have accused Mexico of widespread human rights violations in carrying out these enforcement efforts. Similarly to the US, Mexico allows individuals fleeing persecution to seek asylum, but with only fifteen officers processing applications nationwide, the system is badly broken and individuals with legitimate asylum claims are frequently deported back to their home countries where they are at risk.
The US offers significantly more protection to unaccompanied child migrants, but there are still gaps, which put these children at risk. Currently, if an unaccompanied child from Central America is intercepted by U.S. Customs and Border Protection agents, they must be delivered into the care of the Office of Refugee Resettlement (ORR) within 72 hours. All children, unless they are over the age of 18 or qualify for the Unaccompanied Refugee Minors program, are released after an average of thirty-five days to sponsors within the US. 90% of children are released to relatives or foster-care, with 30% released directly to parents already in the United States. At this point, the children must wait for their court date, where an immigration judge will decide if they may remain in the US legally.
As it currently functions, the immigration court system does not fully protect unaccompanied children’s human rights. Defendants in an immigration court are not provided an attorney, so the only way they can access legal advice is if they can pay attorney fees or receive pro-bono assistance. Although legal firms, non-profits, and university clinics across the country have stretched their resources to provide as much pro-bono assistance as possible, 70% of unaccompanied children still lack legal representation.
The Obama administration has made changes to the immigration court system that have made it even more challenging for children to win a favorable outcome. In the summer of 2014, immigration courts were directed to give first priority to the cases of unaccompanied children or families who had crossed the border after May 1, 2014. This was an attempt to lessen the average wait time for a hearing, which, in 2014, was an astounding 578 days. These “rocket dockets” set court dates in such quick succession, however, that lawyers felt due process was threatened because they could not prepare a defense in time.
Although they may not be able to prove it without legal defense, many of the unaccompanied children should be eligible for asylum or some other form of relief. Under US law, individuals are eligible for asylum if “they have suffered persecution or fear that they will suffer persecution due to: race, religion, nationality, membership in a particular social group, [or] political opinion.” While US law does not consider the threat of gang violence to meet the level of persecution necessary to receive asylum, there may be special cases where the child is eligible. Additionally, children who were trafficked en route or within the US, or were victims of abuse or violent crime within the US may also be eligible to stay under a T-Visa or a U-Visa. Finally, children who were abused and abandoned by their parents may be eligible for a green card under a Special Immigrant Juvenile Status.
Lawyers who have represented unaccompanied children have generally been able to prove that their clients have a right to remain in the US. American Bar Association research shows that children who are represented by an attorney have only a 30% chance of deportation. However, the same research shows that for children without representation, the chance of deportation rises to 90%. This mismatch indicates that it is likely the US has sent children with legitimate asylum claims back to countries where their lives are at risk.
It is not politically expedient, but the US can do more to protect child migrants. The first priority should be ensuring that immigration court dates are set with enough time for attorneys to prepare a defense, and that as many children as possible receive legal representation. New York City has set an example for how this can be done by partnering with philanthropic groups to raise $1.9 million to cover children’s legal fees.
The federal government should also take steps to address the causes of migration and to limit the dangers child migrants face. Since 2008, the US has invested $640 million in improving rule of law in Central America. However, until conditions in northern triangle countries stabilize, thousands of children will still attempt to travel to the United States. Instead of relying on Mexico to stop these children halfway through their dangerous journey, the US should ensure the children do not have to make a perilous trip in the first place. The Central American Minors Refugee/Parole Program, which allows minors with a parent legally in the US to travel to join them, is a good start. The US could also put pressure on Mexico to admit more asylum seekers, or provide Temporary Protected Status to minors and their families so that they could live safely in the US until conditions in their home countries improve.
Each of these options would be politically and financially difficult, but they would also save lives. The US has a responsibility to offer asylum seekers, particularly children who have made it onto US soil, a fair chance to plead their case. Central American unaccompanied children may be out of the American news cycle, but that should not be an excuse for the US to ignore their needs.
Photo is public domain.