Weakening Legal Protections for Unaccompanied Minors Is Not the Answer

Imagine you are a child from Honduras.  Your hometown is the murder capital of the world, and after numerous run-ins with vicious gangs who attempt to compel membership through death threats, you make the unbearable decision to travel 1,500 miles alone to safety in the United States.  You travel for weeks, risking your life riding on the tops of freight trains while dodging bandits and criminals, hoping to find compassion and relief from the never-ending threats and abuse you have suffered in your home country.  Only when you reach the U.S., Border Patrol agents, wearing uniforms and carrying guns, ask you a series of uncomfortable questions and make you sign confusing forms in a language you do not understand, and within days, you are returned to the home where you lived in fear for so long.

While current U.S. law does not allow this exact situation to occur, that may soon change.  In response to the staggering increase in the number of unaccompanied minors arriving at the southern border, certain members of Congress are actively working to eliminate key protections embodied in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008.  The TVPRA established the system through which unaccompanied minors are currently handled in the U.S., with the process differing based on whether the child is from a noncontiguous or contiguous (i.e., Mexico or Canada) country.

In the case of children from noncontiguous countries, after apprehension by Border Patrol agents or other Department of Homeland Security (DHS) officials, the child must be transferred to the custody of the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR) within 72 hours.  ORR screens the children for medical and other immediate needs and is required to place them in the least restrictive setting that is in the child’s best interests.  Usually, the child is eventually released to live with a “sponsor,” a family member or adult friend who agrees to care for the child while ensuring her appearance at immigration court hearings.  During the course of those proceedings, an Immigration Judge will decide whether the child is eligible for legal relief that would allow her to remain in the U.S. lawfully.  The child must either find an attorney to represent her, at no expense to the U.S. government, or defend herself against an experienced Immigration and Customs Enforcement (ICE) attorney.

In contrast, children from contiguous countries (who, in practice, are almost exclusively Mexican), are screened by Customs and Border Protection (CBP) officials to determine whether they fear returning to their home country based on a credible fear of persecution, or whether they have been a victim of trafficking or are at risk of being trafficked.  If so, the child is transferred to ORR custody and goes through the same procedures as children from noncontiguous countries.  Otherwise, the child is immediately repatriated without seeing an Immigration Judge.

But several recent proposals contemplate rolling back the protections afforded to children by this important law.  Though the details vary, most of the bills introduced by mainly Republican lawmakers in recent weeks, such as the “HUMANE” Act or the Asylum Reform and Border Protection Act, propose to subject all unaccompanied minors to a more expedited repatriation process. In effect, all children, regardless of country of origin, will be treated the way Mexican children are currently handled.  The White House has also referenced proposed changes to the TVPRA, and a House Working Group just recommended a similar “tweaking” of the law.  Many in Congress have considered making changes to the TVPRA a condition to approval of the President’s request for supplemental funding to deal with the current crisis.

Yet these proposed changes go beyond mere “tweaks.”  Rather, they are a kneejerk reaction to an admittedly difficult situation that seeks to play politics with children fleeing danger without addressing the root causes leading children and families to come to the United States in the first place.  Such efforts are misguided and bound to fail for several reasons.

First, the current system does not adequately protect Mexican children.  In a 2011 report, the Appleseed Foundation found that, contrary to the requirements of the TVPRA, “no meaningful screening [was] being conducted” to determine whether Mexican children had legitimate fears of persecution or trafficking.  The screenings were held in environments and conducted in a way unlikely to elicit the required sensitive information.  Appleseed concluded that this failure to properly implement the law was a predictable result of the fact that the screenings are conducted by CBP, “a force intended to repel external threats to the United States and, not surprisingly, without any child welfare expertise.”  There is no indication that CBP’s interactions with unaccompanied minors have improved in the years since the Appleseed report was published, as several nonprofit organizations filed an official complaint with DHS in June 2014 on behalf of 116 unaccompanied children, alleging “systemic abuse” by CBP personnel.  Given CBP’s poor track record in properly screening Mexican children since 2008, it seems unlikely that the agency would fare better when tasked with screening even more children from additional countries.

Part of the problem with screening children immediately upon entry into the U.S. is that these children have experienced trauma, both in their home countries and during their journey. This makes it difficult for them to open up immediately about their experiences.  Children need time to process traumatic events such as rape or sexual assault, physical or psychological abuse, or gang violence and intimidation before they can even begin to articulate what happened to them.  Having a uniformed law enforcement officer interview the child within hours of arrival after a grueling journey while being detained in a jail-like Border Patrol cell can hardly be expected to lead to proper identification of valid trafficking or persecution claims.  Expanding this system to include not just Mexican children but all children regardless of country of origin will result in the very real risk of returning a child to a truly dangerous situation, in violation of the U.S.’s international law obligations and moral ideals.

Second, shrinking the TVPRA protections will do nothing to prevent additional children from fleeing to the United States in the future, because it does not address the root causes that lead desperate children to risk everything for the promise of safety and a better life.  Children do not take the decision to leave their home countries lightly, and reports demonstrate that they prefer to take a chance on a dangerous journey and uncertain future rather than remain in violence-plagued home countries.  Working to reduce gang violence and corruption and strengthen the rule of law in these Central American countries is a more effective long-term solution.

Instead of amending the TVPRA to reduce the protections afforded the children who make it to our borders, we should instead focus on making the system work more efficiently to provide protection to those who need it.  More resources should be provided to the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) and U.S. Citizenship and Immigration Services’ (USCIS) Asylum Division to hire and train more Immigration Judges and Asylum Officers to adjudicate children’s claims.  The continual increases in funding for DHS enforcement efforts in recent years without a concurrent increase on the adjudication side of the equation have led to record backlogs and delays.  Even the National Association of Immigration Judges is concerned about the long-term effect that the proposed changes will have on the immigration court system.

In addition, the lack of legal representation of unaccompanied children only exacerbates the problems that currently exist.  Upon arrival, vulnerable and traumatized children must attempt to navigate the extremely complicated U.S. immigration system by themselves, against experienced (and English-speaking) ICE attorneys.  Not only does this raise due process concerns, but it hampers the ability of courts to process these cases in a timely fashion.  For instance, recent data shows that a whopping 95% of children represented by attorneys do not miss their hearings, resulting in greater efficiency.  And of course, lawyers are better trained and positioned to screen children for legal relief, leading to greater protection for those who need it.

In determining how to respond to this temporary emergency, government leaders must avoid the temptation of politically motivated “solutions” that fail to address the root causes of unaccompanied child migration.  The TVPRA was intended to address concerns that children were not being adequately screened and cared for after apprehension at the U.S. border.  It is not the “loophole” that some critics have called it, but rather carefully designed legislation that was uncontroversial when passed in 2008—it passed with bipartisan support, by unanimous consent in the Senate and a voice vote in the House, and was signed into law by Republican President George W. Bush.  All children deserve protection from harm, regardless of what country they are from.  The United States must uphold its long-standing tradition of leadership during humanitarian crises while developing long-term solutions that will actually make a positive difference.

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3 comments

  1. […] continues. They are challenged to attract the public’s concern; most are also calling for humane treatment and due process for the unaccompanied minors who have received so much attention and […]

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  2. […] of the discussion on how to protect these children focused on the legal options available in the U.S. such as asylum […]

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  3. […] courts as the only appropriate bodies to do so); others have afforded different interpretations to amendments made to federal immigration law in 2008, so that more legal arguments may be required before the […]

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