Pro Bono Work: Representing Unaccompanied Minors

Valencia K. Herrera

At age 16, “Manuel” fled his home in La Union, El Salvador, in the middle of the night to seek refuge from gang violence and recruitment by Mara Salvatrucha (MS-13), the biggest and deadliest gang that reigns across Central America. Time was ticking for Manuel to make the decision to join MS-13 or die if he refused. Hoping to provide an alternative, his parents arranged for Manuel to travel to the United States. En route, Manuel was apprehended by Texas Custom and Border Patrol agents. As a minor unaccompanied by parents or guardians, and without any parent or legal guardian in the United States to provide care and physical custody, Manuel was deemed an “unaccompanied alien child” by Immigration and Custom Enforcement and immediately placed into removal proceedings.

In recent years, unprecedented numbers of unaccompanied alien children (UAC) from Central America have arrived in the United States, sharing similar stories as Manuel. Thousands of UAC from El Salvador, Honduras, and Guatemala flee gang violence, poverty, abuse, persecution, or other dangerous conditions. Consequently, pro bono attorneys are greatly needed to represent UAC in their claims for relief. Due to this need, I took my first case under the supervision of a staff attorney from a legal nonprofit organization. That is how I know Manuel’s story.

An unaccompanied child is afforded certain protections under US law, including being released to live with relatives during removal proceedings. The Office of Refugee and Resettlement (ORR)—the agency responsible for the care and placement of UAC—released Manuel to his aunt in California. My translator and I first met Manuel approximately 3 months later. After our meeting, I assessed Manuel was eligible for asylum (other forms of relief available for UAC include Special Juvenile Immigrant Status, U-visas, and T-visas).

US Citizenship and Immigration Services (USCIS) has initial jurisdiction over UAC cases. Asylum applicants must submit their I-589 Application for Asylum and Withholding of Removal to USCIS, and be scheduled for an interview with an asylum officer in a non-adversarial (out of court) proceeding.

Navigating the asylum process required keeping abreast of concurrently running time lines and developing strategy. For example, by the time I met Manuel, his first master calendar (preliminary) hearing was already scheduled before immigration court. We needed to submit a motion to close those proceedings administratively so Manuel could wait for USCIS to adjudicate his asylum application. An immigration judge will administratively close an unaccompanied child removal case if presented with proof of receipt of the I-589 application from USCIS. To avoid delaying receiving the proof of receipt, we chose to submit the I-589 form only. A general asylum application entails the I-589 form, a written declaration, and supporting evidence (e.g., country reports). Holding off submitting the remaining application materials until closer to his interview date also allowed more time to work on his declaration and gather supporting evidence.

To be eligible for asylum, Manuel must credibly establish that he is unwilling or unable to return to his country of origin because he suffered past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C §1101 subd. (a)(42)(A). This meant Manuel’s written declaration had to describe the harm and persecution he faced, addressing the incidents leading up to, and reasons for, his departure from El Salvador.

Drafting the written declaration was difficult for two reasons: Manuel’s reluctance to share information and satisfying the application’s “nexus requirement.” Manuel’s initial drafts were vague because he intentionally left out names and specific details. Manuel did not want to report the gang harassment and threats he suffered for fear of retaliation. Additionally, the written declaration’s nexus requirement meant Manuel had to show his persecution was “on account of” his affiliation with one of the protected grounds. This was challenging because there can be multiple reasons an applicant is persecuted, but a protected ground must be a “central reason.”

After numerous in-person interviews and phone conversations Manuel opened up about the persecution he faced at the hands of MS-13. Though he was persecuted for multiple reasons, we argued Manuel’s eligibility for asylum based on his membership in various social groups, including a Christian youth group. MS-13 persecuted Manuel in part because he was a Christian youth opposing gangs, but also targeted Manuel for gang membership because, as a Christian youth, Manuel could further their criminal activity without raising suspicion. We ultimately submitted to USCIS a 10-page declaration, more than 100 pages of supplemental evidence including country reports and a 6-page closing legal memo.

The asylum interview brought its own challenges because it was hard to prepare Manuel and the interview process is long. Manuel feared deportation so he lacked focus when we reviewed potential interview questions. It was difficult to meet him at times because he stopped attending school, instead opting to work to earn money for his family in El Salvador, should he be deported. An entire year passed from filing the I-589 form before Manuel was even scheduled for an interview. The three-hour interview was challenging for Manuel because facing an asylum officer intimidated him, increasing his nervousness. He had difficulty providing detailed and consistent answers because almost two years passed since he entered the country. Interview performances like Manuel’s are common among UAC.

USCIS ultimately denied Manuel’s asylum application. Although this outcome was hard to accept, Manuel’s story is not over. Manuel’s case is now reopened in immigration court where he can present his relief claims de novo in an evidentiary hearing before an immigration judge. Approximately 60 percent of unaccompanied children are unrepresented in removal proceedings, which limits their chances of obtaining relief. Although denied asylum through USCIS, Manuel is five times more likely to succeed in his removal proceedings because he has counsel.

I encourage other attorneys to provide pro bono representation to unaccompanied children and get them the relief they deserve; it is a rewarding way to use your license to make a difference.

Valencia K. Herrera

Valencia K. Herrera is a self-employed attorney and pro-bono advocate in San Francisco, California.