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Imagine entering into a strange land, a country that you’ve never been in,” said attorney David Lash as he opened a recent ABA forum on unaccompanied immigrant children. “Imagine being detained in that foreign country. . . [and] having to advocate to assert rights that you have but probably don’t know about under a set of laws you know nothing about without an attorney.” This would be hard enough for an adult, but you are a child.
This is the landscape facing unaccompanied immigrant children who arrive with no adult at U.S. borders. Nearly 24,000 children were detained in 2012, more than three times the number of children detained in 2008. Those numbers are expected to rise this year. These children have no right to a lawyer despite the high stakes and complexity of their legal proceedings.
The forum, hosted by the ABA Children’s Rights Litigation Committee, explored who these children are and why they come to the U.S., how lawyers can help them access justice, and available legal remedies. Lash, who heads a pro bono program at the law firm O’Melveny & Myers LLP, Los Angeles, CA, moderated the forum.
Each year, tens of thousands of children come to the U.S. on their own without a parent or legal guardian, according to Maria Woltjen, director and founder of The Young Center at the University of Chicago Law School. Woltjen explained that immigrant children come from all over the world, including Central America, India, China, African countries like Somalia and Ghana, China, and Mexico. Unprecedented numbers of children are arriving from Central American countries – El Salvador, Honduras, Guatemala – contributing to what immigrant advocates call “the surge.”
Reasons for coming
Immigrant children flee their countries seeking safety, said Woltjen. She cited a recent United Nations study that found 58% of immigrant children came to the U.S. because they were forcibly displaced after suffering harm in their home countries. Top reasons children seek refuge in the U.S. are to seek protection from physical abuse or neglect, escape violence by organized crime, and avoid gang recruitment or sexual victimization.
Entry points, gender, and age
Southern states are common entry points, said Woltjen. While many immigrant children are apprehended upon entry, many others live and work in U.S. communities undetected, she said. Boys outnumber girls, with boys representing 60-70% of unaccompanied immigrant children. However, the number of girls is rising and they are highly vulnerable to sexual abuse, said Woltjen. The age of children varies, with 43% under age 14.
Children apprehended by border patrol officers upon entry are transferred to the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). They are then placed in custodial facilities for children throughout the country, said Woltjen. Most are placed in shelters, while some go to residential treatment centers if they have mental health needs. A few are detained in jail-like settings if they have histories of juvenile justice system involvement.
While in custody, children receive some legal services, said Wotjen. These include “Know Your Rights” presentations by immigrant advocates, and legal relief screenings. Efforts also begin to reunify children with family; if a child has family in the U.S., the law requires that they be allowed to live with them. Woltjen said that 98% of detained children are released to family before their immigration proceedings begin.
Access to Justice
Lawyers are key to telling these children’s stories and guiding them through the legal system, said Woltjen. She explained that immigration courts do not treat children’s cases differently than adults'. With some exceptions, children must make the same showing as adults to qualify for lawful status in the U.S.
Lawyers are key to gaining these children’s trust and understanding their stories so they can help them seek legal relief. Because these children have no legal right to a lawyer at government expense, many appear in immigration court unrepresented.
According to Mary Meg McCarthy, executive director of the National Immigrant Justice Center, Heartland Alliance for Human Needs & Human Rights in Chicago, “In no other system in the U.S. do you see a child walk into their legal proceedings alone.” She said the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) recognizes using pro bono attorneys along with an agency with immigration expertise. This has resulted in successful private-public models in which law firm pro bono programs represent children in immigration proceedings.
Pro bono representation is critical for the many immigrant children being released from government custody throughout the country, said McCarthy. She cited a recent survey of immigrant children in government custody in Chicago that found 44% were eligible for immigration relief. Obtaining this relief is nearly impossible without counsel, she said.
McCarthy encouraged lawyers interested in representing children in immigrant proceedings to get involved but urged teaming with established pro bono immigrant representation programs (see box, next page) or being mentored by a qualified immigration expert. “This is a difficult area of law to navigate without expertise or knowledge,” she cautioned.
With growing numbers of immigrant children entering the U.S., several legal remedies have emerged to protect them.
Special Immigrant Juvenile Status
Shanti Martin, staff attorney at the Washington, DC and Baltimore offices of Kids in Need of Defense (KIND), discussed Special Immigrant Juvenile Status (SIJS), the most popular form of relief. SIJS, created in 1990 and amended in 2008, protects immigrant children who have been abused or neglected by providing immediate eligibility for legal permanent residency (green card) and a path to citizenship.
Martin said SIJS requires involvement by state courts, not just immigration adjudicators. Five elements are needed to establish SIJS status:
- The child is unmarried and remains unmarried until child’s application for legal residency is approved.
- The child is under age 21 (age 18 may be relevant for the state court component).
- The child is declared dependent on a state court or, placed in the custody of an individual or agency.
- A judge determines that reunification with one or both birth parents is not viable due to abandonment, abuse, neglect or a similar basis under state law.
- A judge determines that it is in the child’s best interests not to return to the home country (e.g., no caretaker exists in the home country, child’s abuser is in the home country, child is receiving medical care in the U.S. that is unavailable in the home country).
Before a child can apply for SIJS, a state court process is required, said Martin. The last three SIJS elements require a state court finding: (1) the child is declared dependent or placed in custody by a state court; (2) reunification is not viable; and (3) it’s in the child’s best interests not to return to the home country. The child must have an order from a state court making these three findings of fact to apply with U.S. Citizenship and Immigration Services for SIJS. A child is not eligible for SIJS without this state court order, even if the child was abandoned, abused, or neglected by one or both parents.
Martin explained that to obtain the state court order, the child needs an open case in family court. In most states, the state requires an underlying family court case to make this order. However, some courts sign these orders as declaratory judgments without any underlying action. Some children already have an open state court case (e.g., delinquency, foster care, or guardianship), said Martin. In other cases, the child’s attorney must file a complaint to bring the case in state court. Within the state court proceedings, the attorney moves for an order making findings of fact related to SIJS.
While the evidentiary standard differs by state, Martin said it generally is enough to provide the child’s testimony, caretaker’s testimony, and any corroborating documents.
According to McCarthy, asylum claims are sought by children who seek protection in the U.S. from harm or fear of future harm in their home countries. Claims often involve resistance to gangs or cartel recruitment, resistance to relationships with gang members (e.g., girl with a boyfriend who is a gang member), domestic or family violence, forced marriage, gender violence, imputed political opinion, and clan-based persecution.
McCarthy outlined six elements for asylum.
- The child is in the U.S. and is afraid to return to her home country.
- The reason the child is afraid to return is because someone harmed him in the past or he has a future fear of being harmed.
- The harm must be serious, may be physical but also may be threats or verbal abuse.
- The reason the person is harming the child is because of an affiliation that cannot be changed (race, religion, political views, gender, sexual orientation, or membership in a social group).
- The country from which the child is fleeing cannot or is unwilling to protect the child from harm.
- There is no other location in the home country where the child can live safely.
Under the TVPRA, unaccompanied children with asylum claims can proceed to the asylum office for their initial adjudication, said McCarthy. This involves an interview with an asylum officer and is not an adversarial process. McCarthy said children often prevail in their cases before an asylum officer as long as they have counsel to help them prepare the application.
One difficulty in asylum cases is gathering evidence to prove the claim and the child’s identity, particularly in war-torn countries such as Somalia, or where the family opposes protecting the child. The complexity of the law also makes it critical that attorneys get good training and resources and that they work with agencies with immigration expertise, stressed McCarthy.
Woltjen described two visas that offer protection in limited circumstances:
- A trafficking visa (T-Visa) protects victims of severe forms of human trafficking, including sex and labor trafficking. It allows a child to remain legally in the U.S. for four years, and after three years the child can apply for legal resident status.
- A U-Visa protects victims of certain serious crimes that occur within the U.S. Certification is required from federal, state, or local law enforcement to show the child is being helpful/cooperating. While a U-Visa protects immigrant children who are victimized in the U.S., claims involving harm during an immigrant child’s journey may support a U-Visa if the action can be tied in some way to the U.S.
Deferred Action for Child Arrival Program (DACA)
This discretionary form of temporary status provides the youth employment authorization and a two-year deferral from deportation, according to McCarthy. Since one eligibility requirement is that a youth must have been in the U.S. for five years before June 15, 2012, many immigrant youth are ineligible for this relief since they are just crossing the border or have not been in the country for the required period.
Greater understanding of the needs of unaccompanied immigrant children who seek refuge in the U.S. is prompting attorneys to step up to help them navigate their legal options. Protections exist but are tough to secure without a skilled guide and advocate who understands immigration law. Pro bono and immigration advocacy programs are largely filling this need, assisted by organizations with immigration expertise.
Claire Chiamulera is the editor of CLP.
The forum, “Unaccompanied Immigrant Youth Alone in the Courts,” was presented by the ABA Children’s Rights Litigation Committee on April 1, 2014.