My friend and office mate Sheryl Winarick is an immigration attorney, advocate and entrepreneur based in Washington, DC and Austin, TX. Before starting her own immigration law practice in 2007, she spent eight years working for national non-profit organizations–Catholic Legal Immigration Network and the Justice For Our Neighbors program of the United Methodist Committee on Relief. She is currently in Residence at the TED office in New York and serves on HIAS’ Public Policy Committee. Here, she writes about her experience as an attorney-volunteer assisting refugee women and children at the Southern border:
Sheryl Winarick, do-gooder.
Stories of the European refugee crisis continue to flood the headlines, but mass media seems to forget we have a refugee crisis in America, too. Since the beginning of fiscal year 2014, over 120,000 unaccompanied children and an additional 120,000 people in family units–mostly young mothers with children–have arrived at the U.S. border seeking protection from violence in Central America.
In March, I spent a week volunteering for the Refugee and Immigrant Center for Education and Legal Services (RAICES)–one of several partner organizations that comprise the CARA Pro Bono Project. I was assigned to represent women and children before the immigration court in San Antonio, Texas. Karnes County Residential Center, operated by the U.S. Department of Homeland Security, houses these refugees in harsh conditions while they wait for a judge to determine their fate. Their stories are tragic, as is the reality that most of these desperate human beings do not qualify for protection under U.S. law, despite the well-documented probability that they will face severe violence and harm if they are returned to their countries of origin.
General violence, extortion, corruption and impunity are endemic in countries like Honduras and El Salvador. However, in order to qualify for political asylum, an applicant must demonstrate that the persecution or harm she fears is targeted against her specifically “on account of” her race, religion, nationality, political opinion, or membership in a particular social group (PSG). Usually, PSG is the only hope, and eligibility hinges on a combination of the facts unique to each case, access to representation, and the appointed judge’s interpretation of PSG (which is not strictly defined).
As I sat in the courtroom while my clients spoke to a judge via video conference from the Karnes detention center, I imagined how they must feel and the thoughts that might race through their minds. Karnes is about 60 miles southeast of the court in San Antonio, so it made more sense for other RAICES volunteers to prepare them for court. That means they had never met me in person, and here I was representing them in what could be the most important hearing of their life.
How could they comprehend who I am, why I am there, and how I could know best what to say to the judge? Imagine, these desperate women, completely dependent on the help of strangers speaking a strange language in a strange land. They don’t understand our legal system, and how can they possibly trust institutions of justice here in the U.S. when parallel institutions in their own countries are so corrupt? To make matters worse, the first thing we do to them (and their 3, 4, 5-year-old kids) is lock them up in detention facilities. The only truth they know is that they had no choice but to leave home if they wanted to live and to give their children a fair shot at life.
There are no easy answers. My hope is for our elected officials and for individuals like you and me to confront our collective reality with courage and compassion. People all over the world are wrestling with these very real issues daily; some of us from the comfort of our homes and others from jail cells in unfamiliar places. We must seek solutions for those in need and fight for rights and dignity for all people.
For a minute, close your eyes and imagine if this was your story, simply to be born into a hostile environment. Say a prayer for those in need, definitely give thanks for the freedom and relative comforts you enjoy, and do whatever you can to make a positive impact in this world we share.
This article originally appeared on the HIAS website.
Since the surge of asylum seekers arriving at our Southern border began in 2013, the number of people held in family detention has increased dramatically. Men, women (including pregnant women), children, and infants are kept in secure facilities—jails—while their asylum cases are adjudicated. There have been plenty of issues at these facilities: Allegations of physical, sexual, and psychological abuse by guards, inadequate food, suicide attempts. A recently-filed lawsuit claims that people are kept in freezing, overcrowded, and unsanitary cells. Many immigration advocates have been calling for an end to family detention, and recently 33 U.S. Senators signed a letter requesting a halt to the practice.
Powder blue is the new black.
On the other side of the debate are those who believe that family detention does not go far enough. They argue that allowing anyone to arrive at the border, request asylum, and then receive entre into the United States is an abuse of the system, a threat to our security, and an inducement to others—many others—to try the same thing. The restrictionists, led by several House Republicans, believe that permitting asylum seekers into the United States is tantamount to an open borders policy: Anyone who wants to come to the U.S. need only say the magic words—“I am seeking asylum”—and they will be granted admission.
Is this, then, our only choice? Either we detain everyone who arrives here until their cases are finally decided, or we throw open our borders to all comers?
I can imagine circumstances where it would be justified to detain arriving asylum seekers–including children–and I think it is worth exploring the possible justifications, and whether they are legitimate. Let’s take a look at some of the reasons for family detention and whether they are justified:
1. Some of the people coming here are dangerous, and since we don’t know who the bad guys are, we should detain everyone – Detaining an asylum seeker (or any arriving alien) who poses a danger to the U.S. is perfectly legitimate. Given how little we know about people seeking entry at the border, it makes sense to be cautious when releasing people from detention. But in the case of detained families, it is highly unlikely that mothers and children present a threat to our country’s safety. For the most part, I don’t think the U.S. government views mothers and children as a security issue, and I don’t see how the widespread detention of such people can be justified on these grounds.
2. The only way to deter migrants from making the risky journey to the U.S. is to stop rewarding them with admission into our country – This argument at least has the pretense of concern for the migrants’ safety. Indeed, a bill floating around the House of Representative, which would make it more difficult for unaccompanied minors to seek asylum in the United States, is called the Protection of Children Act. Of course, the journey from Central America to the U.S. can be dangerous (though the danger is far less than that faced by asylum seekers who cross the Mediterranean to Europe). Despite its superficial good intentions, my feeling is that this argument is simply a pretext to keep people out. If lawmakers really cared about the fate of the young people coming to the U.S., they would ensure that each person receives a complete and fair hearing on the merits of her case.
3. Most Central American asylum seekers have weak cases, and so they will eventually be deported. If we allow them in, they will disappear and not abide by their removal orders – The validity of this argument depends largely on how frequently non-citizens abscond. As usual, we need more data to be sure, but Immigration Court statistics indicate that since 2005, only about 60.9% of minors appear for their court hearings (the appearance rate has improved somewhat in the last few years, and represented juveniles are much more likely to appear (92.5%) than unrepresented (27.5%)). Given that a significant percentage of unaccompanied minors will abscond, this seems to be a legitimate argument in favor of detention.
To make matters worse, many of the asylum seekers coming from Central America have weak cases and—assuming they appear for their hearings—they are likely to be ordered removed. While this argument presents a real challenge to immigration advocates, there is, I think, a more humane (and less expensive) response than jailing families.
Alternatives to detention (“ATD”)–such as electronic monitoring, bond, and intensive supervision (via telephonic or in-person reporting)–are effective ways to improve court-attendance rates. A recent GAO report indicates that between 95 and 99% of aliens on one ATD program reported for their hearings (the report also indicates that more data is necessary to fully evaluate the program). If more resources were shifted from detention to ATD, it would likely become an even more effective method of ensuring aliens’ appearance in court.
Also, while asylum cases from Central America are often legally weak, many of the applicants have a very legitimate fear of persecution in their home countries. The problem is that the fear of harm (from gangs, cartels or domestic partners) does not easily fit within a protected category for asylum. I remember one case where I did a bit of pro bono work: A gang member wanted to date the applicant’s sister. When the parents refused, the gang murdered most of the family. Applicant escaped the massacre and came to the U.S. An Immigration Judge denied asylum because the case did not fit into a protected category. That decision was ultimately reversed (by a federal court), but it illustrates the problem—just because you do not fit neatly into a protected category does not mean that you will be safe in your country. Because of the high stakes involved and the difficulty of demonstrating a “nexus,” asylum cases from Central America often need more—not less—attention from decision-makers and advocates. When applicants are detained and their cases are rushed through the system, it is often impossible to ensure that due process is respected and that we are fulfilling our humanitarian obligations (and sometimes, the results are deadly).
4. If we allow the migrants to enter, it will only encourage others to follow – Our geographic isolation has resulted in relatively few people seeking asylum in our country (compared with, say, Jordan, South Africa or Pakistan). This has allowed us the luxury of an elaborate (i.e., expensive) asylum system. Our system is not designed to handle large numbers of applicants, and indeed, the surge has threatened “the system” in at least two ways: (1) Delays throughout the system have become so interminable that many applicants simply cannot wait for a decision. Some are separated from close family members; others are under great psychological pressure. These delays—measured in years–have proved too much for many applicants, and they have left the country for fates unknown; and (2) The large numbers of arriving aliens have also attracted Congressional attention, and several bills have been introduced that would curtail the rights of asylum applicants.
The question here is whether detaining families and rushing court cases will deter would-be migrants, and thus save “the system.”
As a general principle, I think it is a bad idea to deny certain asylum seekers due process in order to preserve the system for other asylum seekers. Part of the problem is that we have never had a real debate about who should qualify for asylum. Victims of gang violence and domestic violence are not traditional asylum seekers. Such people qualify for asylum as a result of creative lawyers pushing the boundaries of the law. Perhaps if there had been a rational policy debate about whether such people should qualify for asylum, or whether we should offer them some other type of humanitarian protection, we would not be faced with our current dilemma.
Finally, I doubt that the restrictionists will ever be satisfied with President Obama’s efforts related to border enforcement. Trying to preserve the asylum system by appeasing such people is pointless. While I believe we need to decide, as a country, who we will offer asylum to, I am not convinced that detaining families will convince those who oppose the asylum system to change their minds.
In the end, while I believe there are reasonable arguments supporting family detention, I am not convinced. Given the alternatives to detention, we can better fulfill our humanitarian obligations and protect our borders without detaining families and children.
A case recently argued before the U.S. District Court in Seattle seeks to ensure that every child in removal proceedings is represented by an attorney. The case–styled J.E.F.M., et al. v. Holder–was filed by the Northwest Immigrant Rights Project, and claims that without the assistance of a lawyer, children in Immigration Court cannot receive due process of law.
Some children probably don’t need lawyers.
The Complaint notes that despite the efforts of many non-profit organizations, volunteer lawyers, and the government itself, the majority of children who appear before Immigration Judges go unrepresented. It compares the situation of children in Immigration Court with children in juvenile delinquency proceedings:
[The] Supreme Court recognized that when the Government initiates proceedings against children facing juvenile delinquency charges, the Due Process Clause requires the Government to provide those children with legal representation to ensure that the proceedings are fundamentally fair. In re Gault, 387 U.S. 1, 41 (1967). The Court held that “[t]he juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it… The Constitution guarantees children this safeguard notwithstanding the civil, rather than criminal, character of juvenile delinquency proceedings.
Immigrants, including immigrant children, are also entitled to Due Process when facing deportation [and Immigration Court proceedings, like juvenile delinquency proceedings, are civil, not criminal]. Reno v. Flores, 507 U.S. 292, 306 (1993). Both the Constitution and the immigration laws guarantee all children the right to a full and fair removal hearing, including the opportunity to defend against deportation and seek any forms of relief that would enable them to remain in the United States. And just as in juvenile delinquency proceedings, children cannot receive that fair hearing without legal representation.
In terms of the basic legal argument, this seems like a slam dunk: There is no way a child–or even your average non-English-speaking adult–can navigate the Immigration Court system without the assistance of someone who knows what she’s doing (i.e., a lawyer). But of course, the hard realities of life in the immigration world are not so simple, and there are a few policy arguments that may carry more weight than the legal claim.
The first policy argument against providing lawyers to unaccompanied minors is cost. I view this argument as a bit of a red herring because I am not convinced that the cost of paying for lawyers is much different than the cost of not paying for lawyers. In cases where the alien is unrepresented, the Immigration Judge and the Trial Attorney must spend significant extra time on the case, and this time obviously costs the government money. I imagine this problem is particularly acute in cases involving children, who cannot easily articulate their claims. Where the child is represented, her attorney can prepare the case, communicate with DHS counsel, and present the case efficiently. Whether paying for this attorney is much more expensive than making the IJ and DHS sort out the case, I don’t know. But I would imagine that the difference in cost is not as significant as opponents of providing lawyer might have us believe.
The second policy argument concerns the incentives that providing lawyers will create. To me, this is the strongest policy argument against giving lawyers to children. The so-called “surge” of unaccompanied minors does not correlate with a spike in violence–the source countries have been very violent places for years. Rather, it seems likely that the surge was caused by “pull” factors–maybe the belief that immigration reform in the United States would grant benefits to people, if only they could get here before the reforms were implemented. I have little doubt that providing lawyers to unaccompanied minors would further incentivize children (and everyone else) to come here. Whether this is necessarily a bad thing, I am not sure. On the one hand, many of the young people who have come here face real harm in their home countries. On the other hand, more people coming to seek asylum in the U.S. burdens an already overwhelmed system and causes long delays–and great hardship–for everyone in the system. Of course, there are already many incentives for people to come to the United States: Safety, jobs, family reunification. I am not sure that one more incentive–the guaranteed assistance of an attorney–will make much difference.
Finally, there is the issue of public perception. It’s unclear to me where the public stands on asylum in general, and on unaccompanied minors in particular. There are loud voices on both ends of the spectrum: Advocates on one side who essentially believe in open borders and who want to use the asylum system to achieve that goal, versus restrictionists on the other side, like some in Congress who hope to “protect” these children by sending them all home. Frankly, I am not much of a fan of either camp, and I suspect that the general public is also somewhere in the middle. If the asylum system becomes too costly, or too much of an open door, we will likely see a shift in opinion against it, which will be bad for everyone. Whether or not providing lawyers to unaccompanied children will be the straw that breaks the camel’s back, I do not know, but given the current mood in Congress, it is a danger that needs to be considered.
All these policy considerations should (theoretically) not count for much with a court of law, but traditionally, such arguments have impacted decision-making in asylum and immigration cases. As advocates have continually expanded the categories of people eligible for asylum and the protections available to asylum seekers, we run the risk of making asylum a victim of its own success. For the sake of the many people who receive protection in our country, I hope that will not be the case.
In a recent press conference, the dynamic duo of Congressman Steve King and rich guy Donald Trump made some pretty frightening claims about the young people who have lately been arriving at our Southern border. Mr. King told the audience that America is becoming “a third-world country” because of “the things that are coming at us from across the border,” including illegal drugs, Central American children of “prime gang recruitment age,” ISIS… and the Ebola virus. These are some pretty serious charges, and so we here at the Asylumist decided to investigate for ourselves. What we found will shock you.
King and Trump: A couple of cards. Probably jokers.
After flying down to Texas, I went to a detention facility that must remained unnamed. There, I met a 14-year-old boy, who we will call Juan. Juan hails from El Salvador–or so he says–and claims that members of a gang attacked his house, threatened his family, and tried to kill him. He then fled to the United States. It’s a sad tale, but is it true? I suspected that there was more to the story. You see, Juan has brownish skin, so he is likely a Muslim. Plus, when I met him, he was sweating. This, despite the fact that the detention facility is kept at a balmy 52 degrees Fahrenheit. In my book, Sweating = Ebola. I had some hard questions for Juan:
ASYLUMIST: Salaam Alaikum.
JUAN: [stares blankly]
ASYLUMIST: Salaam Alaikum.
JUAN: I am not sure what you are saying to me.
ASYLUMIST: Yeh, right. So tell me Juan, if that is your real name, why did you come to the United States?
JUAN: Actually, Juan is not my name. You just started calling me Juan for some reason. My real name is Alberto.
ASYLUMIST: For purposes of this interview, we will call you Juan. So tell me, Juan, why did you come here?
JUAN: In my town, the gang is very powerful. If you don’t join them, they threaten you, take your money, even kill you. Gang members have targeted my family because we are Evangelical Christians and we refuse to join the gang. My father is a Minister. Because we refused to join, the gang set our house on fire, they fired a gun through our window, they threatened me many times with guns and knives. Finally, they tried to kill me, so I had to…
ASYLUMIST: Blah, blah, blah. Everyone knows that you can’t get asylum in the U.S. if you are fleeing gang violence. There’s no nexus. It will open the floodgates. We have enough problems here already. We don’t need gangbangers like you messing up our country.
JUAN: But I am not a gang member! And I heard that in some cases, when a person is threatened on account of his religion, he can receive asylum in the U.S. even if the persecutor is not the government. There is a case about that called Matter of S-A-. Also, the gang targeted my whole family; not just me, and “family” is a protected category under U.S. asylum law. One case that discusses family as a social group is Lopez-Soto v. Ashcroft. Besides these published decisions, there are many unpublished decisions where people like me have received asylum in the United States.
ASYLUMIST: You seem to know a lot about asylum for a 14-year-old Salvadoran boy. Very suspicious. Let’s shift gears. Why are you so sweaty?
JUAN: I don’t have Ebola.
ASYLUMIST: Ah Ha! I didn’t even mention Ebola. Why would you bring it up unless you had Ebola. Thou protesteth too much, dear Juan. Excuse me while I relocate myself outside your six-foot danger zone.
JUAN: You mentioned it at the very beginning! And I really don’t have Ebola. I’ve been detained here for two months. If I had Ebola, I’d be dead by now.
ASYLUMIST: You’re spitting when you talk. Please stop that.
JUAN: I was not spitting.
ASYLUMIST: If you don’t have Ebola, how do you explain the sweating?
JUAN: Maybe because I am stressed. I fled my country and I’m away from my family for the first time. The gang tried to kill me. Now, I’ve been detained for the last two months.
ASYLUMIST: I’m not buying it. Didn’t you come here to take our jobs and our women, collect welfare, and spread Ebola and Jihad? Is that a prayer rug you’re sitting on? And what’s that book next to you? It looks like a Koran.
JUAN: Huh?
ASYLUMIST: You’re sitting on a Muslim prayer rug. And that book looks like a Koran.
JUAN: No, I am sitting on a towel. There was no bed space for me, so they gave me a towel to sleep on. It is not very comfortable.
ASYLUMIST: And the book?
JUAN: Pep Comics # 224. It’s about Jughead Jones and his dog named Hot Dog. The dog used to belong to Archie, but somehow Jughead got him.
ASYLUMIST: I see. Anything else you want to add before I leave this godforsaken place?
JUAN: I am just hoping to get my case heard. I am afraid to return to my country. I want to live safely and in peace. I don’t have any diseases and I am not a terrorist or a criminal. I really don’t understand the United States. You are so powerful, and yet you are afraid of a 14 year old boy. I hope you will help me. And why are you on the floor in the fetal position?
ASYLUMIST: Please don’t unleash your Jihadi Ebola attack on me! Ahh! Run away!
We’ve been hearing a lot lately about the dramatic increase of asylum seekers and unaccompanied minors at our Southern border. There is debate about what is causing the increase–violence and poverty in the home countries vs. lax enforcement and the relative ease of obtaining lawful status in the U.S.–and no one really knows for sure. Because we receive more migrants from the more violent Central American countries and less from the more peaceful countries, I think that dangerous country conditions are a significant “push” factor. This hypothesis is supported by a new UN report that found a 435% increase in the number of Guatemalans, Hondurans, and Salvadorans requesting asylum in other, more peaceful, Central American countries. The report also surveyed several hundred child arrivals and found that, for the majority, violence in the home country was a factor in their migration. On the other hand, because the uptick in arrivals in the U.S. is generally not correlated with an uptick in violence at home, I suspect that “pull” factors also play a significant role. The fact is, if you live in a violent, poor country, and you want to find a place where you can resettle, live safely, and build a life, the U.S. is probably your best bet (yes, Canada is nice too, but it’s a bit far).
For some politicians, even considering thinking about possibly looking into immigration reform can be harmful.
Regardless of the reasons behind it, the surge of people arriving at our Southern border has created real problems for the asylum system and for all applicants, many of whom are facing long, seemingly indefinite, delays. The influx is also problematic because large numbers of young people are making the dangerous journey North to the United States. This journey puts them at risk of physical and sexual harm, it separates families, and it provides income to the criminal organizations that smuggle people to the U.S. (often the same organizations involved in the drug trade). Indeed, the criminal/smuggling organizations apparently contribute to the influx (and their own bottom line) by encouraging people to make the journey.
So what can be done about the situation? And–more specifically–what can be done that discourages primarily economic migrants, but that also protects legitimate refugees and preserves our asylum system for those who need it? Also, can anything be done to make the journey safer and to cut criminal/smuggling organizations out of the process?
The UN report provides some recommendations: International actors should pay more attention to the protection needs of child migrants, we should increase our capacity to deal with child arrivals and work together with other nations to address the needs of these children, and we should work to reduce or eliminate the factors leading to forced migration. While the report’s findings are very valuable (this seems to be the first time any large scale study bothered to ask the migrants themselves why they are coming here), I don’t find the recommendations particularly satisfying. It is always easy to say we need more attention and more resources to reduce a problem, but who will pay for this? And how do we build a public consensus to bring more immigrants here and pay for them? Also, to say that we should address root causes seems obvious, but how?
Perhaps a better solution would be to create Refugee Processing Centers in Mexico and Central America. Not only would this cut the smugglers out of the picture, deprive criminal/smuggling organizations of income, and greatly reduce the financial incentive for these organizations to encourage more migration, it would also curtail the need for young people to make the perilous journey North.
For this to work, we would have to end all refugee processing at the border. Anyone who arrives at the border (or who enters unlawfully and then seeks asylum) would be sent to a refugee processing center in, say, Mexico. In order to encourage people to go directly to the processing centers (instead of the border), people who go to the border first would be given a lower processing priority than people who arrive directly at the centers. A side benefit would be that legitimate refugees would no longer be arriving at the border; this would allow the Border Patrol to focus on illegal entrants.
There are obviously logistical issues to work out, for example: Where do we house people–including children–who are waiting? How do we share the burden with other countries in the region? Would other countries be willing to resettle some refugees (according to the UN report, they already are). Despite the obstacles, it seems to me that this would work better than the non-system that we currently have.
The estimated budget for resettling unaccompanied minors in 2015 is over $2 billion, and this does not even count the cost of dealing with adults who arrive without permission. If trends continue (which hopefully they won’t), our current system will fall apart. We need creative solutions; solutions which–hopefully–will reflect our humanitarian obligations and ideals, protect children, put smugglers out of business, and keep our border secure. De-coupling refugee processing and border enforcement may be one way to accomplish these goals.
The number of unaccompanied children arriving at the Southern border has increased 92% from the same period last year, reports the New York Times—
Administration officials said 47,017 children traveling without parents had been caught crossing the southwest border since [October 1, 2013]. Most are coming from three Central American countries: El Salvador, Guatemala and Honduras…. [There has also been] a spike in the numbers of girls and of children under 13 years old — including some barely old enough to walk.
DHS’s new border drone, designed specifically to intercept unaccompanied minors.
President Obama called the situation a “humanitarian crisis,” which it clearly is, and on Monday ordered FEMA to coordinate a response among several government agencies. The response will include providing food and shelter for the children, searching for relatives in the U.S., and adjudicating cases in Immigration Court. In addition, immigration enforcement agents are working to disrupt criminal smuggling networks and to dissuade potential migrants by broadcasting public service messages warning of the dangers of the journey. All this comes with a hefty price tag, of course, and the President has requested an additional $1.4 billion to deal with the crisis.
The response from advocates on both sides of the issue has been predictably predictable.
“This is a humanitarian crisis born out of the growing violence in Central America,” said Bishop Eusebio Elizondo of Seattle, chairman of the migration committee of the United States Conference of Catholic Bishops. “These children are refugees who deserve the protection of our nation. They should not be viewed as lawbreakers.” Similarly, an Obama Administration official stated that the surge was driven primarily by conditions in Central America, including deepening poverty, an increase in sustained violence, and by many youths’ desires to reunite with parents in the U.S.
On the other side, the indefatigable Republican chair of the House Judiciary Committee Robert W. Goodlatte opined, “Word has gotten out around the world about President Obama’s lax immigration enforcement policies, and it has encouraged more individuals to come to the United States illegally, many of whom are children from Central America.”
As to the argument that the surge is a result of increased violence in Central America, the (admittedly limited) data does not exactly bear that out. According to the latest information from the UN, between 2008 and 2012, homicide rates increased dramatically in Honduras, but actually fell in El Salvador and Guatemala. More recent data for El Salvador suggests that murder rates continued to decline in 2013, but by the end of the year–when a truce between two large gangs fell apart–began to increase. On the other hand, a recent report that attempted to parse out the effect of violence and corruption on migration found some correlation between increased violence and increased migration (other major factors affecting migration include the age of the migrant and her connection to friends and family who have already immigrated). At least for people coming from Guatemala and El Salvador, there does not seem to be an obvious correlation between increased violence and increased migration.
On the other side of the debate, Rep. Goodlatte argues that lax immigration enforcement is serving as a “pull,” which incentivizes young people to come to the U.S. Given that President Obama has deported more people than any other president, Rep. Goodlatte’s claim is, well, ridiculous.
So if it is not increased violence or lax enforcement, what is causing the surge in unaccompanied minors?
The short answer is, I don’t know and neither does anyone else. However, if I had to guess, I’d say that the main reason is that undocumented young people who reach the U.S. have a good chance of obtaining lawful status (through the Special Immigrant Juvenile program, asylum, T visas, etc.). As word of this has gotten out, more people come here. In other words, there is a strong “pull” factor at play for many migrants. Now don’t get me wrong, there are also very powerful push factors, with gang and cartel violence at the top of the list. Also, the fact that the journey here–especially for unaccompanied minors–is very dangerous, reduces the “pull” factor to some degree. The bottom line is, we don’t really know and we need more data about why young people are coming here.
One way to obtain this data–and I suppose this is a radical solution–is to ask the people who have come here. I imagine they know why they made the journey, and if asked, most of them will tell us. Another method is to make public and accessible statistical data about the number of people coming here, where they are coming from, what types of relief they are seeking, and the outcomes of their cases. Such data can be correlated with information about crime and violence in the sending countries, and this might give us some insight into the reasons behind the migration. With such information, we will be better able to make more appropriate policy choices and hopefully reduce the number of children coming here.
Obtaining better data should (I think) be pretty easy, and either Congress or the President could make it happen. The Executive Branch publishes some immigration data, but it is difficult to access and very incomplete. I really do not understand why DHS and DOJ don’t do a better job of organizing and presenting statistical information about immigrants. And if they won’t act, Congress could. But for all his huffing and puffing, Rep. Goodlatte has thus far shown little desire to improve the situation, and seems interested only in political hyperbole. Perhaps if he could muster some maturity and actually take some concrete steps, we might move closer to understanding what is going on. And, as they say, knowing is half the battle.
In 2008, the law was changed so that review of unaccompanied child asylum cases was shifted from EOIR (the Immigration Courts) to USCIS (William Wilberforce Trafficking Victims Protection Reauthorization Act). The Ombudsman’s recommendations address problems with the implementation of the new law.
Statistics about the number of unaccompanied child asylum applicants are hard to come by. According to the DHS Yearbook on Immigration Statistics, in FY 2011, there were 76 children under age 16 granted asylum and a total of 569 people under age 19 granted asylum. These figures do not include dependent children. Also, these are the number of asylum applications granted. I did not find information about the number of denied asylum cases for unaccompanied children.
A USCIS employee works on writing regulations.
The Ombudsman’s recommendations touch on a number of problems, including redetermining unaccompanied alien child (“UAC”) status, difficulty rescheduling UAC interviews, inadequate methods and approaches to adjudication, and the failure of USCIS to issue regulations concerning UAC cases. The Ombudsman made the following recommendations:
Accept jurisdiction of UAC cases referred by the Executive Office for Immigration Review.
Accept jurisdiction of cases filed by children in federal custody under the U.S. Department of Health and Human Services.
Follow established UAC-specific procedures, expand implementation of certain best practices, and enlist clinical experts for quality assurance and training.
Limit Headquarters review to a process that can be managed within 30 days.
Issue as soon as possible regulations regarding the UAC asylum process.
I want to comment on two of these recommendations. First, the always exciting issue of jurisdiction. It seems that the current procedure is for EOIR or CBP (Customs and Border Protection) to make a determination that the alien is an unaccompanied child asylum seeker. Once that determination is made, the alien’s case is transferred to USCIS. The USCIS Asylum Office then re-determines whether the alien is an unaccompanied child. Essentially, the child–who may not have any documentation or other evidence about her age–is forced to prove that she is a child during two separate interviews. If she fails to do so, potentially her case will be bounced back to EOIR, which has already determined that it does not have jurisdiction. This seems like a potential problem for the alien; not mention a waste of resources for the government.
The second issue, which is probably more problematic, is the Ombudsman’s recommendation that USCIS issue regulations implementing the 2008 law. Four years after the law was passed, USCIS has still not issued regulations concerning unaccompanied child asylum seekers. This reminds me of the failure to issue regulations for the Violence Against Women Act (“VAWA”). For years, immigration attorneys used an informal application process for VAWA cases because no regulations were issued. Although I understand that issuing regulations can be complicated, I don’t see why it should take years. Regulations are important to help guide adjudicators and attorneys, and to ensure fairness. Of course, the Ombudsman cannot compel USCIS to issue regulations, but I would have liked to see a stronger statement about this problem.
Overall, the Ombudsman’s recommendations seem sensible. Hopefully, USCIS will take its own advice and implement the recommendations promptly.
