Immigrant Kids in Limbo

Children crossing the border alone are one of the fastest-growing and most vulnerable demographics of undocumented immigrants in the United States. In recent years, the number of unaccompanied minors transferred from DHS to the Office of Refugee Resettlement (ORR) has more than doubled, from 6,560 in fiscal year 2011 to 13,625 in fiscal year 2012—and more than 14,000 transferred to ORR in the eight months since then.

But there’s little mention of this soaring population in the current national debate over how to improve a broken immigration system. Rather, the rhetoric has centered around a pathway to citizenship, temporary-worker status, the border surge, and E-Verify. These are the hot-button issues that have sprung from the ambitious immigration bill—with the appropriately ambitious title, the Border Security, Economic Opportunity, and Immigration Modernization Act—passed by the US Senate last month. Now in the House of Representatives, the bill’s odds are long at best. At risk are a multitude of smaller, often bipartisan provisions that have been obscured by these larger controversies and the attendant hemming and hawing, screaming and shouting they’ve provoked—not least of which are proposed changes to the treatment and rights of unaccompanied alien children.

When I attended a late-Marchsession at the immigration courthouse in Harlingen, Texas, the three packed rows of unaccompanied-minor inmates—boys and girls ranging from age six to seventeen—sat nearly silent in the pews. One by one, as the judge called their names, they responded: “presente.” Though intimidating for some of the children, the day’s proceedings had been relatively simple. Apart from the three teenaged boys who were opting for “voluntary departure,” the rest of these kids (over a couple dozen of them) didn’t really require legal counsel, since their purpose there was mostly procedural, their cases reset for late May. At that point, the rest of them would return to court to argue their right to stay, to specify which form of relief—either Special Immigrant Juvenile Status or asylum, in most cases—they were seeking. Due to limited resources, most of the children would appear before the court alone, with no attorney present to help them argue the complexities of their cases.

Inside the courtroom, the judge advised all of the children to find attorneys before their next appearance. They were given paperwork in English that listed local attorneys who, with one exception, lack the resources and expertise to represent unaccompanied minors. That one exception is ProBAR, a legal-aid service based in Harlingen, Texas, that receives federal funding (through a subcontract with the Vera Institute) for direct representation in cases of children who request to go home or who are being deported.

Because demand for legal counsel in these cases far outweighs the supply of attorneys and organizations that can provide it, ProBAR is inundated. “There are many children who we know have strong cases, but we cannot represent them all,” says Kimi Jackson, ProBAR’s managing attorney. Once unrepresented children are reunited with trusted adults, their cases are transferred to immigration courts closer to where they end up (a lengthy process in itself). If these families cannot find affordable lawyers, the minors must appear alone in court to explain the often traumatic reasons for being here, making their own arguments for their legal right to stay.

All of this could change if the Senate’s immigration bill passes the House intact. There are a number of provisions in the bill that could help unaccompanied minors. One, for instance, stipulates that judges shall appoint legal counsel for any unaccompanied minor in a “removal proceeding,” which will ensure that these minors—children who typically don’t speak English, who don’t understand immigration law and the implications of their cases, and who, for the most part, have never appeared in court—won’t be forced to fight their cases alone. “No child should ever have to face a government attorney or judge by herself,” says Jennifer Nagda of the Young Center for Immigrant Children’s Rights, a Chicago-based agency that provides support for unaccompanied minors.

Not only would the immigration bill provide critical legal counsel for unaccompanied minors, says Nagda, it would require more training for Border Patrol officials on the humane treatment of children; it would improve standards for how children are cared for immediately after apprehension, before they are turned over to shelters; and it would require the government to ensure that children can be safely repatriated.

Among the 300-plus amendments to the bill, one of the most important for the safety of unaccompanied minors was No. 1340, introduced by Louisiana Democratic Senator Mary Landrieu, which called for “best interests of the child” standards for children in immigration proceedings.

In domestic court, children are appointed attorneys, who fight their legal cases, and child advocates (or social workers), who argue for the child’s best interests—the idea being that children are not always able to determine, understand, or vocalize what is best for them (a teenage girl who wants to live with her boyfriend, for example, instead of foster parents). Though this is an undisputed best practice in the domestic courts, there is no such standard for children in immigration proceedings. If a minor becomes frustrated with living in the shelter, for instance, and loses hope of being reunified with family in the US, he might decide he wants to go back to his country of origin, even though he knows it could be fatal to do so (ProBAR and Young Center advocates say they see situations like this quite often). A child advocate could argue that his best interest would be to remain in the US and fight his immigration case—if only to keep him alive. The Young Center provides child advocates for many children, but a fraction of the overall population.

Senators Patrick Leahy (D-VT) and Mary Landrieu—both of whom, according to Nagda, have been “staunch advocates” for unaccompanied minors and “fearless champions for issues related to children”—launched arguments on the Senate Floor to protect 1340, what they referred to as an “uncontroversial amendment.”

“ ‘Best interests of the child’ is done in every state, in every court,” Senator Landrieu argued on June 19. “When we are making decisions about families, it is always in the best interests of the child. It is modern child welfare practice. It will clarify this bill.”

The next day, when the amendment still hadn’t passed, Senator Leahy took the floor to say, “You know, I hear a lot of speeches that we should support family values … but when you try to put it in a bill—that it is obviously a family value, protecting children—then we have an objection.”

Despite these strong efforts, the Senate never voted on the “best interests” amendment.

“It’s pretty historic that a senator introduced an amendment related to the best interests of the child in the immigration context. While we were disappointed that it wasn’t voted on, there’s no doubt that everyone’s first priority, including ours—and we’re the best-interests people—was to get appointed counsel into the bill,” says Nagda. Securing counsel for all unaccompanied minors would be a huge victory for protecting the basic rights of children, she says, for the upwards of 15,000 children that are expected to arrive in the US by 2014.

The recent July 4 citizenship ceremonies held across the country marked a critical turning point for many who came to this country with aspirations to prosper and provide for their families. For most unaccompanied children, reaching the United States has an even more basic end—survival. The immigration bill has a long way to go, but comprehensive reform could pave the way for vital improvements in the welfare of this booming population of children.

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Editor’s Note: For a more expansive treatment of legal issues related to unaccompanied immigrant children, please see Lauren Markham’s “First the Fence, Then the System” in the Summer 2013 issue of VQR.