October 07, 2013 Articles

The Plight of Unaccompanied Immigrant Children: An Australian Attorney's Perspective

By Jahan Navidi

For many people, moving to the United States of America represents a chance for a new beginning. The "American dream" presents seemingly boundless opportunities and the prospect for a life their home countries may not offer. This American dream is even more meaningful for the tens of thousands of immigrants that arrive in America from countries like Guatemala, El Salvador, and India every year. It is perhaps even more significant still for a particularly vulnerable group amongst these immigrants—unaccompanied minors. The opportunities that America presents to this group of individuals are, however, limited by their access to legal representation.

Pro Bono Week
Recently, I had the opportunity to visit a facility housing these children as part of Pro Bono Week at Baker & McKenzie. As an Australian, visiting from the Baker & McKenzie office in Sydney to complete an international clerkship at Baker & McKenzie in Chicago, this presented a unique opportunity to gain firsthand insight into the life of an immigrant child. This experience at the facility housing unaccompanied immigrant children was [jarring], and one that I suspect will have a profound impact on me long after I have returned to Australia. For me as a young lawyer at the start of my career in the corporate world, it was a timely reminder of our obligation as lawyers to assist those whose lives, quite literally, are dependent on our legal knowledge and advice.

Adjusting to a new city is challenging. Because I am from "Down Under," my sense of culture shock was trivial. I found I had to adjust to such things as the different metric system, cars that drove on the other side of the road, and minor linguistic variances. But even as a 23-year-old, I found these slight differences between Australian and American somewhat daunting. In light of my experiences, I cannot fathom how difficult it would be to be in Chicago as an unaccompanied minor, with little knowledge of the culture, language, or way of life.

From the outset, my experience at the immigration housing facility was jarring. Indeed, following the overview of the legal regimes governing asylum claims of unaccompanied minors in the United States, it was immediately apparent these children would require support and legal advice to articulate their asylum claims. Unaccompanied immigrant children do not have the right to appointed counsel within the United States, which makes it even more imperative that lawyers partake in pro bono initiatives to assist these children. In addition, to achieve Special Immigrant Juvenile(SIJ) status, and under the definition of a "refugee" under the Refugee Convention, narrow, circumscribed criteria must be fulfilled. Consequently, the prospects for successful immigration are dependent on the placement of children in a category, such as the category of persecution in their home countries on racial, religious, or political grounds. Of course, the children may not fall into one of these categories, and they may be too young to understand, let alone explain, their plight, which makes it difficult to advance their claims.

Asylum seekers are generally required to disclose as much information about their reasons for asylum to progress their claims. Identification documents such as passports and birth certificates are also required. It is often the case, however, that having fled their countries, these children often speak no English, are not aware of the application requirements, and carry little or no identification.

Because of my Australian background, I found this session particularly insightful given some of the differences between United States and Australian law pertaining to unaccompanied immigrant children. During my final semester of law school at the University of Sydney, I worked at Australia's largest refugee service, the Refugee Advice and Casework Service. I found it incredibly useful to learn about the American approach to unaccompanied children, which involves the immediate housing of children within centers. This presents a vast contrast to the Australian system, which involves the offshore processing of asylum seekers.

Tour of the Center
Equipped with some background into the intricacies of U.S. immigration law, we proceeded to partake in a guided tour of the unaccompanied minor facility, which included sharing lunch with some of the unaccompanied children. I found the children to be well behaved and polite individuals who offered their seats and expressed natural curiosity about our career in law. I was amazed at how easy it was to talk to the children despite our language barriers. The fact that I was from Australia was a source of great fascination for some of the Indian children, particularly given the historic rivalry between Australia and India in cricket. We also established bonds over topics such as the Blackhawks' recent victory and even Chicago's somewhat erratic summer weather. Indeed, we were both new to Chicago, pursuing new opportunities and experiences. Our similarities demonstrated that regardless of your country of origin, or the language you speak, there are commonalities which transcend physical borders.

An Interview with a Minor
The most [eye-opening] aspect of my experience at the facility was an interview I helped conduct with a particularly fragile and vulnerable unaccompanied minor. Whilst the intricacies and details of our interview remain highly confidential, it highlighted the vulnerabilities some of these children face as unaccompanied minors within the United States. The child's visible exhaustion, helplessness, and simple lack of awareness of legal rights within the complex immigration system placed her at serious risk of being sent back to her home country where she may potentially face a life-threatening predicament. My assistance in providing a legal assessment of the child's predicament and prospects of submitting a successful asylum claim alerted me to the vital role lawyers and child advocates can play in assisting unaccompanied children.

Given that minors may not be aware of their legal obligations and roles, it is necessary for lawyers to provide counsel and assist them with presenting the strongest possible case for asylum. In addition, given that they are children on their own, they will often need child advocates (best-interests guardians ad litem) to help put their cases in context. Without this assistance, it is difficult to imagine an unaccompanied child having reasonable prospects for success for immigration to the United States.

Through the interview process, I was enlightened by the intricacies and difficulties associated with working with children within the legal industry. There are challenges associated with obtaining instructions from clients who are minors, in addition to language and other barriers. Further, obtaining the facts from minors is complicated by the trauma associated with their journeys and the requirement to relive often painful experiences from their homeland. Such challenges present a vastly different working environment as compared with our interaction with corporate clients.

To assist in obtaining the relevant facts and instructions, there are multiple guidelines which exist specifically for the purpose of assisting individuals who work with children, given their particularly vulnerable status.

Comparison with Australian Policy
The trip to the facility is highly significant given the recent political debate surrounding asylum seekers in my home country, Australia. The arrival of so-called boat people is a vexed and divisive issue right across the spectrum within Australian politics.

Typically, a small number of asylum seekers seek refuge in Australia, traveling from countries such as Sri Lanka, Afghanistan, and Iran. These asylum seekers generally stop in Indonesia, but some risk their lives to travel to Australia by boat in perilous conditions. This is not dissimilar from many of the unaccompanied minors arriving in America, some of whom have traveled in extremely dangerous conditions.

In July 2013, the Australian Labor Party enacted a controversial and hard-line policy which has placed a blanket ban on any so-called boat people being settled in Australia. A new asylum seeker arrangement between Australia and Papua New Guinea (PNG) has been adopted, and it will mean that all asylum seekers arriving by boat, not by plane, will be transferred to PNG, where they will be mandatorily detained for an undefined period of time. Indeed, as a professor of international law at the University of Sydney, Ben Saul, has described, "many countries would find it laughable that an astonishingly rich and under populated country like Australia would seek to amend the [refugee] convention in response to an extremely modest refugee flow." In 2012 alone, a total of 58,179 persons were admitted to the United States as refugees, and 29,484 were granted asylum. In comparison, in 2010–2011, Australia's refugee intake was 13,799.

This latest policy of deterrence appears legally dubious and perhaps inconsistent with Australia's obligations under the Refugee Convention. As stated under article 31 of the convention, an asylum seeker may not be penalized on account of mode of entry to Australia—whether by boat or by plane. Perhaps the Australian Labor Party would benefit from a trip to a local unaccompanied minors facility similar to the one I visited during my time here in Chicago. The inhumane policy of rejecting all of these arrivals purely based on their method of arrival is, contrary to the requirements of the Refugee Convention, punitive. To suggest that unaccompanied children, such as those in Chicago, would "never be settled in Australia" purely due to the nature of their arrival appears logically and legally incongruous. It defeats the underlying purpose of the Refugee Convention and undermines the definition of an "asylum seeker." My experiences at the facility in Chicago demonstrated that minors are vulnerable and at risk of getting lost in the legal system. For immigrants sent to PNG, accessibility to legal advice will decrease significantly, and they will be subjected to mandatory detention for extended periods of time.

Pro Bono Initiatives
There are multiple pro bono opportunities for lawyers to assist unaccompanied minors by providing free legal representation or serving as a child advocate. By working with unaccompanied immigrant children or representing an unaccompanied child seeking asylum to gain Special Immigrant Juvenile status, lawyers can be expected to partake in 80–100 hours of casework, which presents a substantive learning opportunity. The pro bono representation and child advocate projects serving immigration centers provide in-depth training, technical assistance, and case support, which presents an opportunity to harvest legal skills. Further, it is an opportunity to improve legal and communication skills by learning how to obtain instructions from a minor, which is vastly different to the usual corporate client.

My experience at the facility served as a pertinent reminder of our obligations as lawyers to help provide legal services to those who genuinely require our assistance. Whether it is through experiencing the harsh realities of an immigration facility housing unaccompanied minors on the other side of the world, or simply volunteering to provide assistance to your local community to those who desperately require legal aid, we, as lawyers, certainly have a role to play in increasing accessibility to the law. Having gained law degrees, we are in position to make a difference, and we should embrace this by assisting those who may not be as fortunate or privileged. My experience has certainly changed my outlook and desire to participate in pro bono initiatives. Perhaps it will change yours too.

Keywords: litigation, children's rights, asylum, best interests, child advocate, deportation, immigrants, unaccompanied children, pro bono

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Jahan Navidi – October 7, 2013