Refugee Status for Children in Central America?

In the spring and summer of 2014 the U.S. faced an unprecedented humanitarian crisis on the U.S./Mexico border involving tens of thousands of unaccompanied child migrants from Guatemala, El Salvador, and Honduras. Extensive news coverage and reports explored causes of the sudden influx of so many children from Central America. Root causes such as poverty, pervasive gang violence, extensive state violence, and family reunification were all discussed as reasons for migration to the U.S. Additionally, reports and news coverage focused on the treatment of these children once they had been apprehended by U.S. immigration officials. There was tremendous support for the child sensitive approach to releasing children into the custody of their families or sponsors as they await their Immigration Court hearings and, paralleled with that, an extreme frustration with the so called “soft” approach of holding these children in non-detention facilities and releasing them pre-trial.

While the issue of unaccompanied child migrants is not new, the extreme spike in arrivals in 2014 was unplanned for and left agencies scrambling for resources. The number of unaccompanied child migrants has obviously decreased since the summer, largely attributed to the change in weather and start of winter, but government agencies and other service providers are anticipating an equal or greater number of unaccompanied children attempting to cross the border in spring and summer of 2015.

Much of the discussion on how to protect these children focused on the legal options available in the U.S. such as asylum for gang-based persecution or developing same form of temporary protected status (TPS), often granted to foreign nationals of countries who have experienced a significant natural disaster or humanitarian crisis. Additional discussion concentrated on public and private partnerships in the Northern Triangle to ameliorate some of the root causes of out-migration. These partnerships and coalitions would need to work together to create more economic opportunities in home countries, reduce all types of state and non-state violence, and foster internal and regional development. The U.S., along with the governments of El Salvador, Honduras, and Guatemala, realized their mutual responsibility in developing and implementing viable programs to address this issue.

As President Obama develops his plan for Executive Action on Immigration, Vice-President Biden announced a plan to offer refugee status and parole for certain qualifying children in the Northern Triangle countries of Guatemala, Honduras, and El Salvador, hoping to provide a form of legal humanitarian relief and avoiding such high numbers of children attempting to cross the border in the future. Specifically, Vice-President Biden’s plan will allow children, under the age of 21, residing in Honduras, El Salvador, or Guatemala who have parents in the U.S. who are Lawful Permanent Residents (LPR) or U.S. citizens and can demonstrate they face severe danger to apply for refugee status. If a child is denied refugee status but can still demonstrate they face extreme danger they may be paroled into the U.S. on a case by case basis.

The State Department refers to this plan as, “safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to the United States.” Provisions are also set to include the possibility of the second parent applying with the child if the child lives with this parent in the home country. There are an allocated 4,000 slots for refugees from Latin America, which also includes Cubans.

This notification comes at a time of extreme hope for the immigration system in the U.S. and is a positive step in addressing the humanitarian crisis on the U.S./Mexico border. The fact the U.S. is willing to use the terminology of ‘refugee’ to refer to these children finally acknowledges the fact that they are fleeing situations that are often analogous to war conditions and are deserving of the protection afforded by international refugee standards.

Despite the promise and necessity of this plan, there are some obvious practical concerns that are worth noting. First, the requirement of having a LPR parent in the U.S. may suggest that ultimately very few children will be eligible for this status. Due to the cumbersome, bureaucratic, and lengthy time it takes to be granted refugee status and admission, a LPR parent could also be applying for a family based petition for their qualifying child or spouse. The burden is significantly less for a parent to prove their biological relationship to their child than it is for a child to prove they have experienced some type of abstractly defined harm. It seems that if a parent was a LPR they would have already applied for their child, or done so through a family based petition. As outlined in the State Department’s press release, refugee classification takes an extremely long time to establish and a child would need to participate in a pre-screen interview, a formal interview, and a DNA test amongst other requirements before being granted this classification. In times of crisis, it seems problematic for a child to wait for this process to move forward if their lives are in danger. There are only 4,000 slots, although the State Department does acknowledge the potential flexibility of this number depending on the situation, and this plan is meant to encompass Cuba, El Salvador, Guatemala and Honduras. More than 70,000 children, primarily from the Northern Triangle, were apprehended on the border in 2014 alone, and this number does not account for children who were not apprehended. Not all children flee for gang or cartel violence, but 4,000 seems relatively small compared to the numbers at the border.

While there are some clear concerns and shortcomings with Vice-President Biden’s plan, it is a welcomed development in the programmatic work being done to protect unaccompanied migrant children and is an alternative, for some, to seek legal relief instead of attempting the journey to the U.S.

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