The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
Juan Hernandez, a 16-year-old boy, arrived in the United States in October 2010. Upon his entry, he was stopped by U.S. Immigration and Customs Enforcement in Texas. He came with no family, no friends, no luggage, and no ability to speak English. Unknown to U.S. Immigration and Customs Enforcement, Juan was carrying a different kind of baggage.
Juan grew up in El Salvador in a small, crowded two-bedroom apartment with his mother, father, grandmother and younger siblings. His father was an alcoholic who often took out his frustrations by viciously beating him. When Juan was 10 years old his father abandoned the family and to this day his whereabouts are unknown. The burden of caring for the family fell on Juan’s shoulders. His mother suffered from schizophrenia, and her untreated mental health issues were so severe she was unable to work or take care of herself, let alone her children. To help his family, Juan dropped out of school and found a job as a mechanic.
One afternoon, not long after securing his job, Juan was walking home when he witnessed the murder of a civilian by members of the MS-13 gang. Unfortunately, the gang members noticed his presence. Fearing for Juan’s life, his grandmother advised him to flee to the United States where a maternal uncle lived.
After arriving in Texas, U.S. Immigration and Customs Enforcement released Juan to his uncle’s custody in Baltimore, Maryland and gave him a court date to appear before immigration court. He was cautioned by the immigration officer who released him that unless he had a basis for remaining in the United States, the Immigration Court would order his departure.
Soon after moving in with his uncle, who was unaware that Juan was coming to the United States, Juan was forced out of the home. With no other contacts in the United States, Juan wound up on the streets.
Unaccompanied Minors: Where They Come From
Juan’s story is not unusual. Every year more than 10,000 children without lawful immigration status cross the United States’ border unaccompanied by an adult.1 Referred to as “unaccompanied alien children,” these individuals are without legal status, under the age of 18, and have no parents in the United States who are capable of caring for them.2 The number of children who attempt crossing the border is closer to 80,000, but the vast majority are deported within 72 hours.3
About 80% of the minors who do enter the United States come from Latin American countries such as Honduras, El Salvador, and Guatemala where poverty, gangs, and drug-related crimes are rampant.4 Many of these children are fleeing violence, whether it is abuse in their homes or threats from organized gangs, while others are trafficked across the border for commercial sexual exploitation.
Challenges Unaccompanied Minors Face
Many of these children are detained and taken into federal custody. Placed in federally funded residential facilities, they wait for court hearings to determine if they can stay in the United States or be deported.5 Their fate is largely determined by whether an attorney will represent them and serve as their advocate.
Others are released to the custody of relatives who often take advantage of their illegal status by using them as servants and refusing to allow them to enroll in school, a legal right. In 1982, the U.S. Supreme Court held in Plyer v. Doe that undocumented school-aged children may not be denied a free public education.6
Still others live with relatives and parents who care for them, but they live under the radar, in poverty, without medical insurance and education. Many are forced to work illegally and are paid less than minimum wage, while suffering abuse from employers. They are often denied basic rights such as health insurance, workers’ compensation, and freedom from sexual harassment. Children who try to escape their abuse face homelessness, often leading them into lives of prostitution or crime to survive.
Forms of Relief: How to Help an Unaccompanied Minor
In recent years, many legal avenues have been created to help eligible immigrant children obtain legal status in the United States so they do not have to be deported to potentially dangerous situations or face a difficult and complicated life in the United States as an illegal immigrant. Special Immigrant Juvenile Status is by far the most common method of securing legal status for immigrant children, but these other methods are available in certain circumstances.
Special Immigrant Juvenile Status
Special Immigrant Juvenile Status (SIJS) was created through the Immigration and Nationality Act of 1990.7 It was further expanded in 2008 via the Trafficking Victims Protection and Reauthorization Act of 2008.8 Unaccompanied minors who cannot reunify with “one or both of their parents” due to abuse, neglect, or abandonment can apply for SIJS.9 In order for a child to be eligible for this protection, a state court must find the child has been abused, neglected, or abandoned by one or more parents.10 This can happen in one of two ways:
- If a child has been abandoned by both parents, the local department of social services can take the child into its custody. By doing so a petition will be filed with the local state circuit court, and if no one comes forward as the child’s parent, that child will be found by the state court to have been abused, neglected or abandoned by his or her parents and placed in the custody of the state, in foster care.
- The second avenue is where a child resides with one parent and the other parent abused, neglected, or abandoned the child in the home country or in the United States. The parent residing in the United States can file for custody and ask that the state court find in its order that the child was abused, neglected, or abandoned by the other parent. A petition for SIJS can then be submitted, with a copy of the requisite state court order, which must have specific findings, including a finding that the child has been abused, neglected, or abused by the other parent.
After the Special Juvenile Immigrant Status petition is approved, the child can pursue adjustment of status, to change their status from illegal to legal.
Any child who arrives and fears returning to their country of origin because of past or future persecution based on race, religion, nationality, membership in a particular social group, or political opinion, can apply for asylum based on their status as a refugee.11 This relief option is valuable for children who are being persecuted because of their sexual orientation or persecution by a gang, recruitment as a child soldier or child prostitute, or even the political activities of their parents.12
Created through the Battered Immigrant Women Protection Act of 2000, a child who has been the victim of a qualifying serious crime in the United States can apply for a U-Visa, so long as they cooperate with law enforcement in the investigation and/or prosecution of the individual who committed that crime.13 Although the title of the act suggests the visa only applies to women, in fact any person, adult or child—male or female—is eligible for this visa if they suffered any mental or physical abuse as a victim of a crime.14
Qualifying crimes include “rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.”15 The petitioner must submit a letter from a certifying agency (a law enforcement agency, prosecutor, or judge) verifying that they were a victim of a qualifying crime and were helpful or will be helpful to the investigation or prosecution of such crime.16
The T-Visa (T nonimmigrant visa) applies to victims of human trafficking, age regardless. To qualify, victims must show they have been a victim of severe trafficking, which means they were lured to the United States under false pretenses and used for either commercial sex acts or labor equating to involuntary servitude or slavery.17 Victims must cooperate with law enforcement and also show hardship if removed from the U.S. For victims under age 18, these requirements are eliminated.18 Enacted in 2000 through the Victims of Trafficking and Violence Protection Act, recipients of a T-Visa are granted legal status in the United States.
A VAWA (Violence Against Women Act) petition can be filed by any adult or child who does not have legal status in the United States and is being abused by their spouse or parents. The abusive spouse or parent must be a U.S. citizen or have lawful permanent residence. The VAWA petition allows the abused adult or child to obtain legal status in the United States without any assistance from the abuser.
The Need for Advocacy for Unaccompanied Minors
Although these laws protect unaccompanied alien minors, many illegal children are unable to access the protections that these laws offer. Those in detention centers are often unable to find an attorney, due to the shortage of pro bono attorneys who are willing to help unaccompanied minors. Others are living in abusive situations and/or are homeless, without any way of accessing the very laws that are designed to help them.
A number of organizations formed to help such children, specifically Kids in Need of Defense, which has a number of offices including one in Washington D.C., The Young Center for Immigrant Children’s Rights in Chicago, and the Immigrant Legal Resource Center in San Francisco.
Other organizations such as Catholic Charities, which has long since provided assistance to immigrants, have started programs specifically designed to aid unaccompanied minors. The Office of Refugee Resettlement was transferred the responsibility of meeting the needs of unaccompanied minors in 2002 through the Homeland Security Act, and consequently provides residential placement for unaccompanied minors, as well as runs a legal access project to recruit pro bono attorneys to represent unaccompanied minor children.
From Undocumented Minor to Legal Resident
Juan’s story did not end on the streets of Baltimore. Because of his immigration case, Juan was put in touch with Kids in Need of Defense, in Baltimore, Maryland. He was assigned a pro bono attorney who had him placed in foster care and applied for SIJS on his behalf. Juan’s petition was granted and he now lives legally in the United States. Through his foster care program he learned English, and is now preparing to take his GED.
Many immigrant children have stories like Juan’s, but few have the skills to navigate the complicated world of immigration law on their own. Any attorney interested in taking on a pro bono case should consider representing an unaccompanied minor.
Priya Konings is a child welfare attorney with the Law Offices of Darlene A. Wakefield, P.A. She practices in Washington D.C. and Maryland, and is a volunteer attorney with Kids in Need of Defense and The Montgomery County Bar Foundation Pro Bono Program. You can contact her at email@example.com.
Child Immigrant Advocacy Organizations
Kids in Need of Defense
1300 L Street NW
Washington D.C. 20001
The Young Center for Immigrant Children’s Rights
6020 S. University Avenue
Chicago, IL 60637
Immigrant Legal Resource
1663 Mission St # 602
San Francisco, CA 94103
1. U.S. Department of Health and Human Services, Office of the Inspector General. Division of Unaccompanied Children’s Services: Efforts to Serve Children, 2008. http://oig.hhs.gov/oei/reports/oei-07-06-00290.pdf
2. 6 U.S.C. § 279(g)(2).
3. Danielle Knight. “Waiting in Limbo, Their Childhood Lost.” U.S. News & World Report 136(9), March 15, 2004, 72-5.
4. National Conference of State Legislatures. Issues & Research, Immigration, Unaccompanied Immigrant and Refugee Minors, 2005 http://www.ncsl.org/issues-research/immig/unaccompanied-immigrant-and-refugee-minors.aspx
5. U.S. Department of Health and Human Services, Administration for Children and Families¸ Office of Refugee Resettlement. “Unaccompanied Children’s Services,” 2011. http://www.acf.hhs.gov/programs/orr/programs/unaccompanied_alien_children.htm
6. 457 U.S. § 202 (1982).
7. 8 U.S.C. § 1101(a)(27)(J).
8. 122 Stat. 5044 (2008).
9. 8 U.S.C. § 1101(a)(27)(J).
11. 8 U.S.C. § 1101(a)(42).
13. Pub. L. 106-386, § 1513, 114 Stat. 1464, 1533-37 (2000).
15. INA § 101(a)(15)(U)(i), 8 U.S.C. 1101(a)(15)(U)(i).
17. 22 U.S.C. § 7102(8).
18. 8 U.S.C. § 1255(l).