these children come from Honduras, El Salvador and Guatemala, where gang and. drug violence terrorize communities. To th
Meeting the Challenge of Unaccompanied Alien Children at the Southwest Border: Is There a Better Way? By Nolan Rappaport July 10, 2014: According to Homeland Security Committee Chairman Michael McCaul (R-TX), we are facing an escalating refugee and national security crisis in Texas. Since October, more than 50,000 unaccompanied alien children have crossed our Southern border illegally to enter the United States, and U.S. Customs and Border Protection (CBP) has estimated that next year the number may rise to more than 150,000. Many of these children are under the age of 10, and they are traveling thousands of miles alone from Central America through Mexico on buses or on so called “death trains.”i
The evening news in Mexico frequently shows footage of a ramshackle freight train known as “La Bestia” (The Beast) going across the country carrying immigrants who are trying to reach the United States' Southern border. It is a long journey and accidents are common, e.g., passengers falling off the roof and having their limbs severed. An aid group in Honduras reports seeing more than 450 migrants who have returned mutilated. Derailments also are common.ii President Barack Obama has asked Congress for a $3.7 billion supplemental appropriation. Among other things, President Obama wants to expand the Border Enforcement Security Task Force programiii by increasing information-sharing and collaboration among the law enforcement agencies that are combating transnational crime; and he wants to increase air surveillance capabilities to provide 16,526 additional flight hours for border surveillance and 16 additional crews for unmanned aerial systems to improve detection and interdiction of illegal activity. President Obama wants to be able to hire approximately 40 additional immigration judge teams. These additional resources, when combined with the FY 2015 Budget request for 35 additional teams, would provide sufficient capacity to process an additional 55,000 to 75,000 cases annually. The supplemental funding also would support efforts to repatriate and reintegrate migrants to Central America, and it 1
would be used to help the governments in Central America to secure their borders and to address the underlying root causes that are driving this migration, e.g. by strengthening the weak economic conditions and improving the security of their citizens.iv House Judiciary Committee Chairman Bob Goodlatte (R-VA) is opposed to granting President Obama’s request for a supplemental appropriation. According to Chairman Goodlatte, President Obama created this disaster and now he is asking to use billions of taxpayer dollars, without accountability, or a plan in place that actually would end the border crisis. It is clear that law enforcement officers at the border need more resources to deal with the border crisis, but such resources will be useful only if there are consequences for illegal immigration. He has many tools at his disposal already to quell the illegal crossings, such as enforcing the immigration laws and cracking down on rampant asylum fraud.v The Administration is trying to discourage Central American and Mexican families from sending unaccompanied children here. CBP Commissioner R. Gil Kerlikowske has warned the families of the unaccompanied alien children that the journey north from Central America to the United States has become much more treacherous and there are no “permisos” waiting here for people who cross the border illegally. Unaccompanied children are easy prey for coyotes and transnational criminal organizations. The children are at risk of being subjected to robbery, violence, sexual assault, sex trafficking, or forced labor. Their journey can take them through harsh terrain and unforgiving weather conditions. So far this year, more than 220 deaths have occurred along the Southwest border, including 34 water-related deaths. The Administration’s Dangers Awareness Campaignvi conveys information about these dangers through Spanish language media outreach, which is accompanied by local media events in metropolitan areas that have high concentrations of Central Americans. The Administration will run approximately 6,500 radio and television public service announcements in El Salvador, Honduras, and Guatemala.vii Department of Homeland Security (DHS) Secretary Jeh C. Johnson posted an open letter to the parents on June 23, 2014. This is an English translation of the letter: This year, a record number of children will cross our Southern border illegally into the United States. In the month of May alone, the number of children, unaccompanied by a mother or father, who crossed our southern border reached more than 9,000, bringing the total so far this year to 47,000. The majority of these children come from Honduras, El Salvador and Guatemala, where gang and drug violence terrorize communities. To the parents of these children I have one simple message: Sending your child to travel illegally into the United States is not the solution. It is dangerous to send a child on the long journey from Central America to the United States. The criminal smuggling networks that you pay to deliver your child to the United States have no regard for his or her safety and well-being – to 2
them, your child is a commodity to be exchanged for a payment. In the hands of smugglers, many children are traumatized and psychologically abused by their journey, or worse, beaten, starved, sexually assaulted or sold into the sex trade; they are exposed to psychological abuse at the hands of criminals. Conditions for an attempt to cross our southern border illegally will become much worse as it gets hotter in July and August. The long journey is not only dangerous; there are no “permisos,” “permits,” or free passes at the end. The U.S. Government’s Deferred Action for Childhood Arrivals program,viii also called “DACA,” does not apply to a child who crosses the U.S. border illegally today, tomorrow or yesterday. To be eligible for DACA, a child must have been in the United States prior to June 15, 2007 – seven years ago. Also, the immigration reform legislation now before Congress provides for an earned path to citizenship, but only for certain people who came into this country on or before December 31, 2011 – two and one half years ago. So, let me be clear: There is no path to deferred action or citizenship, or one being contemplated by Congress, for a child who crosses our border illegally today. Rather, under current U.S. laws and policies, anyone who is apprehended crossing our border illegally is a priority for deportation, regardless of age. That means that if your child is caught crossing the border illegally, he or she will be charged with violating United States immigration laws, and placed in deportation proceedings – a situation no one wants. The document issued to your child is not a “permiso,” but a Notice To Appear in a deportation proceeding before an immigration judge. As the Secretary of Homeland Security, I have seen first-hand the children at our processing center in Texas. As a father, I have looked into the faces of these children and recognized fear and vulnerability. The desire to see a child have a better life in the United States is understandable. But, the risks of illegal migration by an unaccompanied child to achieve that dream are far too great, and the “permisos” do not exist.ix The William Wilberforce Trafficking Victims Protection Reauthorization Act. Administration officials blame the surge in part on the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA, P.L. 110-457),x a Bush Administration law that has made it more difficult to repatriate unaccompanied minors without a formal removal hearing before an immigration judge. TVPRA was not intended to apply to this kind of situation. When former President George W. Bush signed it into law on December 23, 2008, he stated that it was intended to enhance measures to combat human trafficking.xi It is very unlikely that anyone anticipated that it 3
would be used to require removal hearings for more than 50,000 unaccompanied alien children before returning them to their native countries. President Obama has asked Congress to amend TVPRA to give DHS Secretary Johnson discretion to repatriate Central American children more quickly.xii Subsection 235(a)(1) of TVPRA, which is entitled, “Enhancing efforts to combat the trafficking of children,” reads as follows: In order to enhance the efforts of the United States to prevent trafficking in persons, the Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Secretary of Health and Human Services, shall develop policies and procedures to ensure that unaccompanied alien children in the United States are safely repatriated to their country of nationality or of last habitual residence. Subsection 235(a)(5)(D) provides that any unaccompanied alien child sought to be removed by DHS, except for unaccompanied alien children from a contiguous country (Mexico or Canada), shall be placed in removal proceedings under section 240 of the Immigration and Nationality Act.xiii The following chart summarizes the process that is followed to comply with TVPRA when unaccompanied alien children who are not from a contiguous country are apprehended at or near the Southwest border.xiv
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Should the unaccompanied alien children have removal hearings before an immigration judge? The United States does not have the resources to conduct removal proceedings for 50,000 or more additional aliens in an acceptable period of time. If the children stay until they have had hearings, it could be years before they are returned to their native countries, and long delays in repatriating them give the impression that unaccompanied alien children who manage to get to the United States are allowed to stay. This will encourage Central American families to send more unaccompanied children to the United States. And it is apparent that the Administration is right about the dangers that unaccompanied children face en route from Central America to the United States. President Obama’s request for supplemental appropriations only would provide funding to hire 40 additional immigration judge teams. The request asserts that these additional resources, when combined with the FY 2015 Budget request for 35 additional teams, would provide sufficient capacity to process an additional 55,000 to 75,000 cases annually. It would take a substantial amount of time to hire and train the immigration judges and their teams, and it may be difficult to find enough qualified attorneys who want to be immigration judges. In any case, the increase would not be sufficient even to bring current backlogs under control. Section 3501 of the Border Security, Economic Opportunity, and Immigration Modernization Act, S744,xv would require the Attorney General to increase the number of immigration judges by at least 225 judges. As of March 2014, the immigration courts had a backlog of 366,758 cases.xvi The average waiting time for a hearing as of that date was 580 days.xvii In the first three quarters of FY 2014, the pending caseload grew by approximately 25,000 cases, reaching 375,373 cases pending, the highest caseload to date. The Attorney General is going to prioritize the cases involving unaccompanied children,xviii but it remains to be seen what that will mean in practice and it is a certainty that it will increase the waiting time for the rest of the aliens who are in removal proceedings. That waiting time is approaching two years already, and no one knows how many more unaccompanied alien children will be coming. Removal proceedings are not necessarily finished when an immigration judge renders a decision. Within 30 days of the immigration judge's decision, either party, the alien respondent or the general attorney representing the government, or both parties, may appeal the immigration judge's decision to the Board of Immigration Appeals (Board),xix and an immigration judge’s deportation order cannot be executed while an appeal is pending before the Board. The Board completed 36,690 cases in FY13, but at the end of FY13, the Board still had 22,940 cases pending before it.xx Will the unaccompanied children who have hearings before an immigration judge be able to establish eligibility for asylum? To meet their burden of proof for asylum, the unaccompanied alien children would have to establish that they are refugees within the meaning of section 101(a)(42) of the Immigration and Nationality Act.xxi This would require demonstrating that they have 5
suffered past persecution or that they have a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See INS v. Elias Zacarias, 502 U.S. 478 (1992);xxii INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).xxiii The category most likely to apply to the present situation is “membership in a particular social group,” but the Board has held that Salvadoran youths who have resisted gang recruitment do not constitute a “particular social group” for asylum purposes. Matter of S-E-G-, et al., 24 I&N Dec. 579 (BIA 2008).xxiv This does not mean that a persecution claim based on fear of gang violence will never be accepted, but it does indicate that it may be difficult for the unaccompanied alien children to satisfy the particular social group requirement. Even if they can satisfy it, they also would have to show that the gang violence they fear would be “on account of” membership in the particular social group. It may be that in most cases, the risk of being subjected to violence is limited to being an unintended, innocent victim of violence directed at other people, e.g., fear that they will be caught in the cross fire during a gunfight between rival gangs. An alternative to returning the children to their native countries. The United States does not have to assume sole responsibility for helping the unaccompanied alien children from El Salvador, Guatemala, and Honduras. Their plight is an international problem. The United Nations High Commissioner for Refugees (UNHCR) should be involved in finding a way to help them. UNHCR was established on December 14, 1950, by the United Nations General Assembly. Its objective is to safeguard the rights and well being of refugees. UNHCR has helped tens of millions of people restart their lives. Today, a staff of some 7,685 people in more than 125 countries continues to help some 33.9 million persons: 14.7 million internally displaced people, 10.5 million refugees, 3.1 million returnees, 3.5 million stateless people, more than 837,000 asylum seekers, and more than 1.3 million other persons of concern.xxv Also, UNHCR has an office in Washington, DC (UNHCR Washington).xxvi With a grant from the John D. and Catherine T. MacArthur Foundation, UNHCR Washington undertook an extensive study to determine the reasons why children are displaced from El Salvador, Guatemala, Honduras, and Mexico. UNHCR Washington learned that 58% of the 404 children they interviewed were forcibly displaced because they had suffered or faced harm. In addition to children who may be able to establish eligibility for refugee status, UNHCR Washington found others who, although they would not be able to obtain refugee status, nevertheless were in need of international protection due to their lack of safety or security in their countries of origin. UNHCR Washington has developed a Refugee Protection and Mixed Migration 10-Point Plan of Action, which is, described in their report, “Children on the Run.” The plan includes methods for recognizing newly merging forms of displacement in Central America and the emergence of international protection issues; ways to strengthen and harmonize regional and national frameworks for ensuring international protection, and measures for addressing root causes. UNHCR Washington would like to work with the Governments of El Salvador, Guatemala, Honduras, and the United States on implementing this plan.xxvii 6
Congress can make it possible for unaccompanied alien children from El Salvador, Guatemala, and Honduras to benefit from the implementation of the10-Point Plan by passing a bill that would exempt them from the removal-hearing requirement in TVPRA and remove any other obstacles to moving them out of the United States. The children then could be moved to temporary locations outside of the United States, which could be chosen by agreement among the Governments of El Salvador, Guatemala, Honduras, and the United States. When the children are safely placed at these locations, UNHCR could screen them to see which ones are eligible for refugee status. The rest of the children could be returned to their native countries when arrangements have been with the governments of those countries to provide safe environments for them. The United States can bring some of the children back as refugees. Refugees are processed and admitted to the United States from abroad. When the unaccompanied children have left the United States, President Obama will have the discretion to bring some of them back to the United States as refugees if he increases the annual refugee number pursuant to section 207(b) of the Immigration and Nationality Act, which reads as follows: (b) If the President determines, after appropriate consultation, that (1) an unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the admission to the United States of these refugees cannot be accomplished under subsection (a), the President may fix a number of refugees to be admitted to the United States during the succeeding period (not to exceed twelve months) in response to the emergency refugee situation and such admissions shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after the appropriate consultation provided under this subsection. The term "appropriate consultation" means discussions in person by designated Cabinetlevel representatives of the President with members of the Committees on the Judiciary in the Senate and the House to review the refugee situation or emergency refugee situation, project the extent of possible participation of the United States therein, and discuss the reasons for believing that the proposed increase in refugees admissions is justified by humanitarian concerns or grave humanitarian concerns.xxviii Chairman Michael McCaul (R-TX), House Homeland Security Field Hearing: “Crisis on the Texas Border: Surge of Unaccompanied Minors” (July 3, 2014). http://homeland.house.gov/hearing/fieldhearing-crisis-texas-border-surge-unaccompanied-minors. ii Homero Aridjis, “Migrants Ride a 'Train of Death' to Get to America & We're Ignoring the Root of the Problem” (July 8, 2014). http://www.huffingtonpost.com/homero-aridjis/migrants-train-of-death-america_b_5568288.html. iii Border Enforcement Security Task Force (BEST). http://www.ice.gov/best/. i
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FACT SHEET: Emergency Supplemental Request to Address the Increase in Child and Adult Migration from Central America in the Rio Grande Valley Areas of the Southwest Border (July 8, 2014). http://www.whitehouse.gov/the-press-office/2014/07/08/fact-sheet-emergency-supplemental-requestaddress-increase-child-and-adu. v Congressman Bob Goodlatte, Press Release (July 8, 2014). http://goodlatte.house.gov/press_releases/563. vi CBP Addresses Humanitarian Challenges of Unaccompanied Child Migrants. http://www.cbp.gov/border-security/humanitarian-challenges. vii The Dangers Awareness Campaign. http://www.cbp.gov/newsroom/national-media-release/2014-07-02000000/cbp-commissioner-discusses-dangers-crossing-us viii Deferred Action for Childhood Arrivals. https://www.ice.gov/daca/. ix DHS Secretary Jeh C. Johnson, An Open Letter to the Parents of Children Crossing Our Southwest Border (June 23, 2014). http://www.dhs.gov/news/2014/06/23/open-letter-parents-children-crossing-oursouthwest-border. x William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. http://www.gpo.gov/fdsys/pkg/PLAW-110publ457/pdf/PLAW-110publ457.pdf. xi President Bush signs William Wilberforce Trafficking Victims Protection Reauthorization Act to combat Human Trafficking (Dec. 23, 2008). http://www.ice.gov/news/releases/0812/081223washington.htm. xii Efforts to discourage unaccompanied minors from entering U.S. have so far failed (July 7, 2014). http://www.homelandsecuritynewswire.com/dr20140707-efforts-to-discourage-unaccompanied-minorsfrom-entering-u-s-have-so-far-failed xiii Sec. 240. Removal Proceedings. http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html. xiv DHS Chart for Processing Unaccompanied Children at the Southwest Border. http://www.dhs.gov/unaccompanied-children-southwest-border. xv SEC. 3501. SHORTAGE OF IMMIGRATION COURT PERSONNEL FOR REMOVAL PROCEEDINGS. http://thomas.loc.gov/cgi-bin/query/C?c113:./temp/~c113hE8vtv. xvi TRAC. Backlog of Pending Cases in Immigration Courts as of March 2014. http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php. xvii TRAC. Immigration Court Backlog Tool. http://trac.syr.edu/phptools/immigration/court_backlog/. xviii Juan P. Osuna, EOIR Director. Hearing before the Senate Committee on Homeland Security and Governmental Affairs, “Challenges at the border: examining the causes, consequences, and responses to the rise in apprehensions at the Southern border” (July 9, 2014). http://www.aila.org/content/fileviewer.aspx?docid=49236&linkid=277241. xix Board of Immigration Appeals. http://www.justice.gov/eoir/biainfo.htm. xx Executive Office for Immigration Review, “FY 2013 Statistics Yearbook” (April 2014). http://www.justice.gov/eoir/statspub/fy13syb.pdf at R2 and W3. xxi Sec. 101(a)(42). The term "refugee" means. http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html xxii INS v. Elias Zacarias, 502 U.S. 478 (1992). http://supreme.justia.com/cases/federal/us/502/478/case.html. xxiii INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). http://supreme.justia.com/cases/federal/us/480/421/. xxiv Board precedent decisions can be found on the EOIR Virtual Law Library, which is available at http://www.justice.gov/eoir/vll/libindex.html. xxv UNHCR, The UN Refugee Agency. http://www.unhcr.org/pages/49c3646c2.html. xxvi UNHCR Washington. http://www.unhcrwashington.org/about-us/unhcr-washington. xxvii UNHCR, “Children on the Run,” available at http://www.unhcrwashington.org/sites/default/files/UAC_UNHCR_Children%20on%20the%20Run_Full% 20Report.pdf xxviii Sec. 207. Annual admission of refugees and admission of emergency situation refugees. http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html. About the Author: Nolan Rappaport was an immigration counsel on the House Judiciary Committee for seven years representing the Democrats on the Immigration, Border Security, and Claims Subcommittee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for more than 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration, and he has spent time in private practice doing visa petitions for the Catholic Church and international corporations at Steptoe & Johnson. Although he presently is retired, he is thinking about going back to work.
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