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July 01, 2014

ABA says United States must not abandon principles of due process in rush to address border crisis

ABA President James R. Silkenat, while acknowledging the serious challenges presented by the unprecedented surge in unaccompanied children entering the country, cautioned last month that the country cannot abandon the principles of fairness and due process in rushing to address the situation.

When President Obama asked Congress June 30 for supplemental appropriations and additional legal authorities for the Department of Homeland Security to deal with the significant increase in the numbers of unaccompanied children entering the United States, the ABA raised concerns about a proposal that may change current law to expedite the removal of these children without appropriate due process protections.

“Fundamental principles of fairness and due process demand that these vulnerable children receive legal representation and guardians to represent their interests throughout the immigration process,” Silkenat said in a statement submitted for the record of a June 25 House Judiciary Committee hearing on the crisis. He emphasized that the majority of the children are not in a position to determine on their own whether they might qualify for legal relief and may not be able to understand the nature of, much less be able to meaningfully participate in, their immigration proceedings.

Silkenat pointed out that the number of children being apprehended by authorities at the southwest border has increased more than ten-fold over the past three years from approximately 6,500 in 2011 to a projected number of more than 90,000 in 2014. The reasons that children immigrate to the United States are often complex and multifaceted, he explained. They include abuse and threats by powerful and violent street gangs, which frequently engage in forced recruitment of teenage boys, sexual slavery of teenage girls, and targeted extortion efforts often focusing on children with parents and extended family members in the United States.

A more recent phenomenon, he said, is children are fleeing because of threats by multinational drug trafficking organizations that demand that children act as drug mules or lookouts for illicit cartel activities. There is no question, he said, that increasing violence and lawlessness in El Salvador, Guatemala and Honduras are major causes of the recent influx.

In his statement, Silkenat recommended that all children receive an in-person legal rights presentation and an individual, child-friendly screening by a qualified legal advocate before being reunited with an approved family member or other adult sponsor. The association also recommends that government-appointed counsel be provided for children who are not otherwise able to obtain legal representation.

Recognizing that not all of these children will be eligible for relief, Silkenat said the ABA recommends that repatriation of children include formal intercountry child welfare agency involvement and adherence to intercountry protocols designed to address concerns regarding the safety of the child during the repatriation process as well as the process of returning the child to a stable environment.

Silkenat also highlighted in his statement the work of the South Texas Pro Bono Asylum Representation Project (ProBAR), which was established by the ABA in 1989 largely in response to the influx of asylum-seekers into South Texas at that time who were fleeing civil war and violence in Central America.

ProBAR staff and volunteers provide legal rights presentations and pro bono representation to indigent detained immigrants and asylum-seekers held in facilities in the Rio Grande Valley.

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