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June 18, 2018 Articles

Legal Protections for Immigrant Youth under Threat

By Martin Gauto

These days when I get ready to start work, I have that moment while I wait for my computer to power up—that moment of anxiety and uneasiness as I wait to see what's in my inbox, on the LISTSERVs, or on the pages of the newspapers I peruse to start my day. This is a feeling that is all too common for immigrants' rights advocates, particularly those who work with immigrant youth. What I fear, and what far too often awaits, is news that the Trump administration has found another way to undercut the important legal protections created to ensure the fair and humane treatment of immigrant youth by our immigration system. Without any accompanying action on the part of Congress to create or change legislation, the Trump administration is quietly taking aim at immigrant youth using the executive tools at its disposal.

The term "immigrant youth" is a broad category. It encompasses undocumented and documented youth; it includes those who are with a parent or legal guardian and those who are unaccompanied. While there are many issues that could be discussed, this article focuses on two groups. First, there are immigrant youth who were brought to the United States by their caregivers at a young age, who have grown up here and who do not know any other country. These are the so-called "Dreamers" who have been fighting for years for a fair chance to permanently legalize their status and whose plight has been well documented. The termination of the Deferred Action for Childhood Arrivals (DACA) program and the ongoing litigation trying to keep it alive are front and center for these youth and the advocates fighting on their behalf. Second, there are immigrant youth who are recent arrivals to the United States, who came alone or without a parent or legal guardian, and who were apprehended and detained by the federal government upon their arrival. These are the "unaccompanied children" whose presence in the national consciousness has been most prevalent since the surge of 2014. The majority of these youth come from the Northern Triangle countries of El Salvador, Guatemala, and Honduras. The poverty, violence, and insecurity in those countries continues to compel children to make the dangerous journey north in large numbers, and the Trump administration is taking various controversial measures to stem the flow.

The Success of DACA
In 2012, based on Congress's inability to pass legislation to protect the Dreamers, President Barack Obama created the DACA program, which provides work authorization and protection from deportation for two years for certain immigrant youth brought to the United States through no fault of their own before the age of 16. The U.S. Citizenship and Immigration Services (USCIS) approved about 800,000 initial DACA applications between 2012 and 2017. The program has been a huge success in terms of the number of undocumented immigrant youth who were able to emerge from the shadows to seek better education and employment opportunities.

A recent survey has given an insightful snapshot of the impact that the program has had on the lives of DACA recipients and their families. This survey was conducted in 2017 by Tom K. Wong of the University of California, San Diego, United We Dream (UWD), the National Immigration Law Center (NILC), and the Center for American Progress. These are some of the study's findings:

  • Ninety-one percent of recipients are currently employed.
  • Sixty-nine percent reported moving to a job with better pay after getting DACA.
  • Fifty-six percent moved to a job with better working conditions.
  • Five percent started their own business (compared with 3.1 percent of the American public as a whole).
  • The average hourly wage of respondents increased by 69 percent.

The survey also illustrated DACA's positive impacts on the economy and education:

  • Sixty-five percent of respondents bought their first car.
  • Sixteen percent bought their first home.
  • Forty-five percent are currently in school.
  • Among those currently in school, 72 percent are pursuing a bachelor's degree or higher.

Attempts to Terminate DACA
Despite the success of DACA and its undeniable positive impacts on individuals, families, local communities, and the national economy, Attorney General Jeff Sessions announced the termination of the program on September 5, 2017, threatening to hurl the approximately 800,000 approved DACA recipients back into undocumented status. The termination plan called for a six-month wind-down of the program, during which eligible DACA recipients could continue to submit renewal applications until October 5, 2017, but initial applications would no longer be accepted.

The program's termination, however, has been put on hold by federal litigation. On January 9, 2018, a federal district court judge in San Francisco ordered USCIS to resume accepting DACA renewal applications but stopped short of ordering USCIS to resume accepting initial applications. In response to the ruling, USCIS resumed accepting renewal applications on January 13, 2018, and continues accepting them to this day. A federal district court judge in New York issued a similar ruling on February 13, 2018. The cases are still pending before the respective courts of appeals in those jurisdictions.

To make matters even more complicated, two additional lawsuits could also affect the future of DACA. On April 24, 2018, a federal district court judge in the District of Columbia ordered USCIS to begin accepting initial DACA applications again. However, the judge gave USCIS 90 days before those initial applications have to be accepted to allow the Department of Homeland Security (DHS) to explain why DACA should be terminated. Then, on May 1, 2018, seven states, led by Texas, sued the federal government to terminate DACA completely. All of this litigation leaves the status of DACA in limbo, and it's not possible to know what the future holds for the program. What we do know right now is that anyone who still has DACA status or whose DACA status expired and is eligible to renew should do so quickly. It should be done in consultation with legal counsel if there are any questions about whether a renewal application could actually harm the applicant. For example, a renewal application for a DACA recipient who had a criminal arrest or conviction after his or her initial approval could actually trigger enforcement by Immigration and Customs Enforcement (ICE).

Protection of Unaccompanied Immigrant Children
Much of the furor surrounding unaccompanied children in the United States has arisen only in the last few years. In 2014, a total of 68,451 unaccompanied children were detained at the U.S. border with Mexico and sent to shelters around the country. Most of the children were fleeing the poverty, violence, and insecurity in El Salvador, Guatemala, and Honduras. The staggering volume of arriving children could only be described as a sea change and led to extensive coverage by the national media. The federal government's infrastructure for receiving, processing, and caring for the children was strained to the breaking point. Emergency shelters, such as the one at Lackland Airforce Base in Texas, had to be established because there weren't enough beds in traditional shelters.

Despite the recent attention, this is not a new phenomenon. Unaccompanied children have been arriving in the United States from different countries and for different reasons for a long time, although not in such large numbers. For many years, unaccompanied children were held in the care and custody of the Immigration and Naturalization Service (INS). As early as 2000, a total of 3,364 unaccompanied children were apprehended at the southern border and detained by the INS. At the time, the INS was also the entity responsible for prosecuting the removal (deportation) cases of those same children, creating a clear conflict of interest. There were also serious concerns about the conditions in which the children were detained.

In 1985, the Center for Human Rights and Constitutional Law (CHRCL) and the National Center for Youth Law (NCYL) sued the federal government to challenge the detention conditions of unaccompanied children in the care and custody of the INS. This lawsuit led to the seminal 1997 Flores Settlement Agreement, a major victory that created many important child protections that are binding on the federal government to this day. The following are some of those protections:

  • a general policy favoring release from detention and family reunification
  • detention, if required, in the least restrictive setting appropriate to the age and special needs of the child
  • the right to a bond hearing
  • access to humane conditions, including drinking water, food, toilets, sinks, medical attention, and adequate temperature control and ventilation
  • segregation from adults
  • notice of legal rights

The Homeland Security Act of 2002 transferred the care and custody of unaccompanied children from the INS to the Department of Health and Human Services' Office of Refugee Resettlement (ORR), which assumed the responsibility to comply with the mandates of the Flores Settlement Agreement. While detention conditions have vastly improved under ORR, challenges remain. The counsel for plaintiffs in the Flores case have had to intervene on several occasions to ensure ORR's compliance with the terms of the settlement. For example, in 2017 when it became clear that detained children were not being given the opportunity to request bond from an immigration judge, counsel for plaintiffs were successful in obtaining an order from the federal court securing that right. Most recently, counsel for plaintiffs sued ORR alleging that the following practices violate the settlement:

  • ORR's policy and practice to "step up" detained youth from shelters to more secure facilities and residential treatment centers without providing them meaningful notice and an opportunity to be heard regarding the agency's justification for step-up
  • ORR's policy and practice to administer powerful psychotropic medications to detained youth regardless of their wishes and without securing their parents' consent
  • ORR's policy and practice to deny or delay detained children's release on the grounds their parents or other available custodians have or may harm or neglect them, without providing meaningful notice and an opportunity to be heard regarding a potential custodian's actual propensity to harm or neglect.

In addition to the statutory changes in the Homeland Security Act of 2002, the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) codified many of the protections of the Flores Settlement Agreement and added additional legal safeguards. Under the TVPRA, unaccompanied children seeking asylum as a defense to deportation are entitled to have their case heard first by an officer in the USCIS Asylum Office, a non-adversarial setting that is more appropriate given the unique nature and vulnerabilities of children. Only if the officer does not approve the asylum request would the case be heard in immigration court, where a trained ICE attorney will prosecute the case, including cross-examining the child, whether the child is represented by a lawyer or not. The TVPRA also ensures that unaccompanied children, other than those from contiguous countries (Mexico and Canada), are able to seek voluntary departure before an immigration judge and, if successful, are able to depart at the expense of the government. Voluntary departure is an important legal safeguard for children who wish to return to their home country or who don't have a viable legal path to remain in the United States. It allows them to depart without the formal legal consequences of a removal (deportation) order, which create obstacles to future ability to immigrate to or enter the U.S.

Attempts to Undercut Legal Protections
Virtually of the existing legal protections for unaccompanied children are being attacked by the Trump administration, which sees them as dangerous loopholes that encourage unauthorized immigration. While bills have made their way through Congress that would alter the statutory framework of the Homeland Security Act of 2002 and the TVPRA, to date none of them have passed. Despite this, the administration, across multiple federal agencies, has made moves aimed squarely at increasing detention and speeding deportations.

Many of these moves have been made through the Justice Department, which operates the immigration courts. It issued case completion quotas for immigration judges that undermine their ability to be neutral arbiters of justice. It issued a legal opinion that states that immigration judges have the authority to revoke a child's "unaccompanied child" status, thus stripping that child of the legal protections afforded by the TVPRA. In addition, Attorney General Sessions is taking advantage of a peculiar provision of immigration law that allows him to divert a specific case from court to himself to create binding precedent. 8 C.F.R. § 1003.1(h)(1)(i). This is perhaps the clearest illustration that immigration courts are arms of the executive branch and that immigration judges do not have independent authority to decide cases. In just the past few months alone, he has used this provision four times. As of this writing, he has reached a formal decision in two of the cases. In Matter of Castro-Tum, he stripped immigration judges of the ability to administratively close cases in most instances. Administrative closure is a procedural mechanism that removes cases from a judge's active docket. It was often helpful in reducing the number of immigration court hearings that children needed to attend while pursuing immigration relief before USCIS. Most recently, in Matter of A-B-, he rewrote the law on asylum by attempting to place severe restrictions on claims based on persecution perpetuated by nongovernmental actors. This is significant for immigrant children, particularly those from the Northern Triangle, because many of them are fleeing gang violence or domestic child abuse (or both).

It is anticipated that the other cases the attorney general referred to himself will similarly alter the ability of immigrants (including unaccompanied children) to have due process in immigration court. Pending decisions by the attorney general could affect the ability to

  • seek continuances to pursue deportation defenses that require decisions from other courts or government agencies;
  • seek asylum without having to prove their case in a short pretrial hearing.

Another significant threat to unaccompanied immigrant children is the Trump administration's approach toward Special Immigrant Juvenile status, which is designed to protect and provide a path to legal status for children who have been abused, abandoned, or neglected. Advocates across the country report that the types of cases that were routinely granted for years are now being denied. In addition, some organizations are reporting that USCIS is revoking previously approved visas at an increased rate.

Meanwhile, DHS has proposed new regulations that would replace the Flores Settlement Agreement as the binding authority on the national standards for the apprehension, detention, and release of unaccompanied children. Under these proposed rules, DHS would check the immigration status of possible sponsors of unaccompanied children and adult household members. ICE would collect biometric data of sponsors and any adults in their household—a departure from the previous policy. This move is worrisome because potential sponsors who could get children released from detention may be too scared to come forward for fear of being deported themselves. Other areas of grave concern include the separation of immigrant children from their parents and ORR's recently announced plans to detain children at military installations and perhaps even erect tent cities. Remarkably, this list of threats to immigrant youth is not exhaustive, as new ones seem to emerge almost every week.

These threats take place against the troubling background that many immigrant youth go to immigration court without a lawyer because they are not entitled to legal representation at government expense. Given that a child's deportation can sometimes result in serious harm or even death, this lack of a right to counsel is deeply troubling.

In spite of the divisive rhetoric and cruel actions on the part of the Trump administration, immigrant youth are a part of the fabric of this country, as in the case of DACA recipients, and others will continue to arrive seeking protection due to ongoing matters of life and death in their home countries. While the current situation for immigrant youth under the Trump administration is extremely difficult, advocates have been fighting for their rights for years. There have been important successes along the way, even if they are threatened to an extent unimaginable just a couple of years ago. What is certain is that today's advocates will not back down and will continue to defend their clients' dignity and pursue all available avenues in defense of their rights.

Martin Gauto is a senior attorney for Catholic Legal Immigration Network, Inc. (CLINIC), based in Los Angeles, California.  

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