The Challenges Facing Unaccompanied Minors
In the United States undocumented immigrants, even if they are unaccompanied children as young as two or three years old, have no right to a public defender. Most proceedings are in Immigration Court and are adversarial. The proceedings themselves are ultimately civil matters with no guaranteed right to counsel. Despite legislation and efforts to provide pro bono representation, many of these children go through proceedings unrepresented. Each year thousands of children enter the United States fleeing war and poverty and are unaccompanied by an adult or separated from their parents or legal guardians. Undocumented immigrants are detained in the custody of the U.S. Department of Homeland Security, but unaccompanied children are then transferred to the custody of the U.S. Department of Health and Human Services. The need for legal representation continues to grow. The Department of Health and Human Services Office of Refugee Resettlement (ORR) reported an unanticipated doubling of the number of unaccompanied alien children coming into the United States in 2012. ORR reported 13,625 children were referred in 2012, far exceeding the projected 8,200.
Unaccompanied children are particularly vulnerable and may be unable to properly care for or protect themselves. As a result, ORR has developed a variety of placement options ranging from long-term foster care to secure care for children charged or convicted of a crime. However, as Wendy Young and Megan McKenna of KIND note in an article for the Harvard Civil Rights-Civil Liberties Law Review (“The Measure of a Society: The Treatment of Unaccompanied Refugee and Immigrant Children in the United States,” Winter 2010, 45:1), ORR continues to utilize facilities in remote regions that make it more difficult for children to find pro bono representation, and obtaining appropriate legal representation continues to be “significantly more challenging than efforts to ensure adequate care, custody, and placement of children.”
This difficulty is due in part to the language under Section 292 of the Immigration and Nationality Act, which provides that individuals in removal proceedings have “the privilege of being represented (at no expense to the Government).” However, when the Homeland Security Act of 2002 charged ORR with ensuring “qualified and independent legal counsel is timely appointed to represent the interests of each child,” ORR responded in 2005 by appointing the Vera Institute of Justice to administer the Unaccompanied Children Program, which provides access to legal services. A 2012 Vera Institute of Justice report showed 40 percent of unaccompanied children could potentially qualify for status that would exempt them from deportation, but without legal representation, these children are more likely to be deported. The same report noted less than 1 percent of children are granted relief while in ORR custody.
For some of these children, the trauma they are escaping is only compounded by the trauma experienced along the way. One KIND client, Wilmer Villalobos Ortiz, a 15-year-old fleeing gang violence in Honduras, rode a month and a half on top of trains winding their way through Mexico. He was not alone. Along the way, he witnessed another boy fall off the train, screaming as his legs were severed by the train’s wheels. He saw narco-traffickers stop the train, beating a woman unconscious and taking her baby. When he finally arrived at the Rio Grande, he had to make his way across the river, ultimately to be detained after crossing into the United States.
Children who are accompanied by a parent or guardian when apprehended are removed (if Canadian or Mexican), voluntarily returned, or placed in family detention during the removal proceedings. Once an unaccompanied child is apprehended, the Department of Homeland Security will initiate removal of the unaccompanied child, and governmental authority for care and custody is transferred to ORR. However, some advocacy groups are concerned that the transfer does not always take place in a timely manner. The Homeland Security Act of 2002 defines an unaccompanied child as a child who “has no lawful immigration status in the United States; has not attained 18 years of age; and with respect to whom there is no parent or legal guardian in the United States; or no parent or legal guardian in the United States is available to provide care and physical custody.” While transfers generally take place within 72 hours, a 2009 report by the Women’s Refugee Commission (womensrefugeecommission.org) found that in some instances children reported they were held up to two weeks in border detention facilities with no windows, no showers, and no recreation facilities and in conditions so crowded that some had to sleep on the floor. The Women’s Refugee Commission further found that Immigration and Customs Enforcement (ICE) interpretations were sometimes in conflict, or children would be kept in custody when there were parents in the United States but ICE was unwilling to turn the children over to these parents.
Although the vast majority of children placed into custody with ORR are teenagers, 16 percent of those placed between October 1, 2008, and September 30, 2010, were under 13 years old according to ORR data.
The 2008 William Wilberforce Trafficking Victims Protection Reauthorization Act provides some protection to these unaccompanied minors by directing children be “promptly placed in the least restrictive setting that is in the best interests of the child.” Although it is not required, the Department of Health and Human Services also has the option of appointing an advocate for the child to argue for his or her “best interests” in matters outside the ultimate disposition of the case. Immigration Court guidelines allow that the “best interests” may determine court procedure, but they are not used as a basis for actually granting relief. Ultimately, the process used and the conditions in which the child is held can be dramatically impacted by legal representation.
There are a number of types of relief available to unaccompanied minors. The most common are asylum, special immigrant juvenile status (granted based on showings of abuse, neglect, or abandonment), and family-based petitions for legal permanent residence. Special immigrant juvenile status involves a two-step process. Children first obtain an order from a state court declaring that they are dependent on the court, that they have been abused, abandoned, or neglected by one or both parents, and that it is in their best interest not to return to the home country. (Because this order comes from a state court, placement in a particular state may determine the likelihood of success.) Once the court order is in place, the child may petition for special immigrant juvenile status and simultaneously for permanent residency. This is the only substantive provision of the immigration process that incorporates the child’s best interest. As an alternative form of relief, children can be granted a T visa if the court believes they were victims of trafficking, or a U visa if they were victims of other criminal acts. These visas may require cooperation with criminal prosecution and/or criminal investigations. The U visa requires a showing of substantial mental or physical abuse as a result of being a victim of criminal activity. The T visa requires showing the child was a victim of a “severe form” of human trafficking as defined in federal legislation.
How You Can Help
The Solo, Small Firm and General Practice Division offers trainings to its members, held live at Division meetings or available on its ABA website, along with free podcasts on immigration topics ranging from remedies available for children to the basics of appearing in Immigration Court. Lawyers volunteering with KIND also receive the support of mentors as they represent children in these proceedings. Lawyer volunteers can come from all types of practice, including transactional work, and all areas of practice. Volunteers need not be immigration lawyers, just committed to providing representation. In partnership with KIND, the Division provides the training needed to appear and represent unaccompanied children clients. KIND case managers (or mentors from partner groups) will provide guidance and assistance as the case progresses.
KIND was founded by actress and humanitarian Angelina Jolie and Microsoft Corporation to address the needs of unaccompanied children for strong pro bono legal representation. Since the organization’s founding, that need, sadly, has only continued to grow. But you can help. For more details on the KIND-GPSolo partnership, as well as related Division resources—including a free CLE training webinar and podcasts and information on how to enroll as a volunteer—go to ambar.org/gpsolokind.