The number of unaccompanied migrant children crossing the southern border of the United States has been growing exponentially in recent years, finally reaching a tipping point in the past several weeks. After a record-breaking almost 25,000 unaccompanied minors were taken into the care of the federal Office of Refugee Resettlement (ORR) in fiscal year 2013, already more than 47,000 children have been apprehended in FY2014, including 9,000 in the month of May alone. Officials estimate that between 70,000 and 90,000 unaccompanied children will cross into the United States by the end of the fiscal year in September. Mostly arriving from the Central American countries of El Salvador, Guatemala, and Honduras, these children have overwhelmed an apprehension and custody system originally intended for between 6,000 and 8,000 children per year, leading President Obama to create an interagency Unified Coordination Group, led by the Federal Emergency Management Agency (FEMA), to deal with this “urgent humanitarian situation.”
Unaccompanied minors, legally referred to as “unaccompanied alien children” or UACs, are children under the age of 18 who enter the United States without lawful immigration status and do not have a parent or legal guardian with them to provide care and physical custody. Once apprehended by Department of Homeland Security (DHS) officials, such as Border Patrol agents, these children are required by law to be transferred to ORR custody within 72 hours. However, given the overwhelming increase in the number of children being apprehended in recent weeks, federal officials are scrambling to find places to hold them all. Military bases in Texas, California, and Oklahoma have been converted into emergency shelters, as ORR continues to seek additional bed space for its own facilities.
The logical question to ask during a crisis such as this is why so many children are fleeing their homes, traveling thousands of miles through dangerous terrain, on their own or accompanied by unscrupulous “coyotes” or smugglers, and arriving at the U.S. border in droves. The United Nations High Commissioner for Refugees (UNHCR) Regional Office for the United States and the Caribbean recently interviewed over 400 children from El Salvador, Guatemala, Honduras, and Mexico, posing open-ended inquiries to try to answer this very question. In their recent report, they found that the majority of the children were trying to escape violence and/or abuse in their home countries. A full 58% of these children raised “international protection needs;” in other words, 58% of the children were no longer able to be protected by the governments of their home countries and so require protection from the international community. Forty-eight percent of the children cited organized armed criminal actors, such as gangs, drug cartels, or state actors, as a reason for their displacement, while 21% shared experiences of abuse or neglect by their caretakers in their home countries; 11% reported having suffered or fearing both criminal violence and abuse in the home.
These findings prove what should already be common sense: individuals, especially children without parents or legal guardians, do not risk their lives on extremely dangerous journeys to foreign countries without compelling reasons. While many children and families understand the perils that children often encounter on their journeys north—smugglers, traffickers, drug cartels, gangs, corrupt government officials, common criminals, rapists, injury or death from falling off the tops of freight trains, and dehydration or starvation while crossing the desert—they have a greater fear of near-certain death if they remain in their home countries. The majority of the unaccompanied children flooding the southern U.S. border are not coming here by choice. Rather, they feel compelled to flee to safer havens because of the lack of security and protection they are afforded at home. As one official told a delegation of the U.S. Conference of Catholic Bishops who visited Mexico and Central America last fall, “the lack of hope exceeds the fear.”
While some have suggested that recent U.S. policy changes such as the creation of the Deferred Action for Childhood Arrivals (DACA) program or the prospect of comprehensive immigration reform (CIR) have led to the current crisis, it is clear that this is not the case. The numbers of unaccompanied children coming to the United States began increasing well before DACA was introduced or CIR began to be discussed in earnest. Only a handful of the hundreds of children UNHCR interviewed mentioned rumors of preferential treatment for children or potential immigration reform as a reason for coming to the U.S., and those references were usually vague. Not to mention that children just arriving in the United States now are not eligible for DACA or the path to citizenship proposed in last year’s Senate CIR bill. Additionally, the U.S. is not the only country receiving this influx of minors – from 2008 to 2013, the number of individuals from El Salvador, Guatemala, and Honduras seeking asylum in countries such as Mexico, Nicaragua, Belize, Costa Rica, and Panama has increased over 700%. While an escape from poverty, better access to education, and/or reunification with family members already in the U.S. are certainly factors that contribute to a child’s decision to migrate to the United States, the dramatic surge of children in recent years is most directly influenced by the rise of gangs and violence, and corresponding breakdown of security systems, in the children’s home countries.
Ultimately, these children require protection from a host of actors, both in their home countries, in countries of transit, and in countries of destination like the U.S. The U.S. must recognize its international obligations and protect those children who do have valid international protection needs. Many unaccompanied children who are released from ORR care are potentially eligible for legal relief, such as asylum, Special Immigrant Juvenile Status, or U or T visas, that would allow them to remain in the United States lawfully under existing laws. However, because noncitizens in removal proceedings before U.S. immigration courts are not appointed lawyers, these already vulnerable and traumatized children must either try to afford a private attorney to represent them, rely on already overburdened nonprofit organizations to provide pro bono or “low bono” legal representation, or else attempt to navigate the extremely complex immigration system and laws on their own, defending themselves against experienced government attorneys in court. The chances of a child recognizing his or her eligibility for legal relief, or understanding how to apply for it, without the assistance of an attorney are slim at best. The newly created justice AmeriCorps program will fund about 100 new attorneys to represent these children, but more must be done to deal with the tens of thousands of unaccompanied minors already in removal proceedings and continuing to arrive in the U.S. every day.
Additionally, U.S. asylum adjudicators need to recognize and provide effective protection to children who have the international protection needs that UNHCR so clearly identified through its interviews. Several recent precedent decisions by the Board of Immigration Appeals (BIA) have made it increasingly difficult for children and adults alike to qualify for asylum in the U.S. when fleeing gang violence. UNHCR, the internationally recognized expert body on refugees and asylum-seekers, has issued a Guidance Note recognizing that “[y]oung people, in particular, who live in communities with a pervasive and powerful gang presence but who seek to resist gangs may constitute a particular social group” in need of protection under the 1951 Convention relating to the Status of Refugees. UNHCR has also submitted amicus curiae briefs to U.S. courts and the BIA, arguing that the recent BIA decisions fail to fully consider international standards and may cause the U.S. to breach its obligations under international refugee law. In its recent report, UNHCR recognized that even those children who may not meet the refugee definition contained in the 1951 Convention may nevertheless be in need of international protection and should be given a formal legal status recognizing that need, in accordance with a number of international human rights instruments.
Finally, the U.S. must work with other countries in the region to staunch the flow of unaccompanied minors over the southern border. A regional response is required in order to strengthen the rule of law and security in El Salvador, Guatemala, Honduras, and Mexico so that children will not be forced to make the impossible decision to flee on their own in the first place. Hopefully the initiatives that the White House recently announced will prove a positive first step in that direction. Housing and providing for the thousands of children already here is an essential and daunting task that of course requires immediate attention; but it is also long past due for the U.S. and its neighbors to work together on long-term solutions so that the current crisis does not become the new normal.
In the end, we must recognize that this is not just an immigration issue, but rather a humanitarian issue requiring a coordinated, comprehensive humanitarian response.
 The Office of Refugee Resettlement (ORR) stated in their “ORR Year in Review” that between March and July 2012, they received more referrals than they had for all of FY2011 combined (indicating that the numbers were increasing before DACA was announced in June 2012, and before immigration reform discussions happened after the election). This is supported by a Congressional Research Service report, which uses unpublished ORR data to show an increase in referrals of UACs to ORR before DACA’s announcement.