Here’s How Hard It Is for Unaccompanied Minors to Get Asylum

The process for the tens of thousands of children entering the United States to gain asylum in America is incredibly complicated. And many kids are attempting to navigate it with no legal help.

NOGALES, AZ - JUNE 18: A U.S. Customs and Border Protection officer helps two young boys pick out clothes as they join hundreds of mostly Central American immigrant children as they are being processed and held at the U.S. Customs and Border Protection Nogales Placement Center on June 18, 2014, in Nogales, Arizona. Brownsville, Texas, and Nogales, have been central to processing the more than 47,000 unaccompanied children who have entered the country illegally since Oct. 1. (Photo by Ross D. Franklin-Pool/Getty Images)
National Journal
Rachel Roubein
July 15, 2014, 5:52 p.m.

The Eng­lish-only ap­plic­a­tion spans at least nine pages, the first hurdle for an un­ac­com­pan­ied child seek­ing asylum in the United States.

Then there’s an in­ter­view. A child is asked to re­count to an asylum of­ficer de­tails of past trau­mas — such as gang re­cruit­ment and kid­nap­pings, pros­ti­tu­tion, and ab­use. If asylum is denied, the young mi­grant goes be­fore an im­mig­ra­tion judge as a fed­er­al at­tor­ney typ­ic­ally ar­gues for de­port­a­tion.

This pro­cess is one that the ma­jor­ity of the tens of thou­sands of un­ac­com­pan­ied chil­dren cross­ing the bor­der this year are ex­pec­ted to man­euver solo. Nav­ig­at­ing the world of im­mig­ra­tion law is com­plex even for a law stu­dent, who would typ­ic­ally take a semester’s time to be­come con­vers­ant in its nu­ances. For a child, it’s nearly im­possible, ac­cord­ing to im­mig­ra­tion at­tor­ney Kristen Jack­son.

“If you have an un­rep­res­en­ted child,” she said, “their ac­tu­al abil­ity to do any of this as a pro se from my per­spect­ive is zero.”

In early 2011, about half of chil­dren un­der­go­ing de­port­a­tion pro­ceed­ings were do­ing so without coun­sel, ac­cord­ing to an es­tim­ate by Kids in Need of De­fense, a non­profit or­gan­iz­a­tion part­ner­ing with more than 200 law schools, firms, and more to find chil­dren leg­al rep­res­ent­a­tion. That was just be­fore the wave of un­ac­com­pan­ied minors from Cent­ral Amer­ica’s North­ern Tri­angle began. And the ca­pa­city to provide pro bono rep­res­ent­a­tion hasn’t caught up, leav­ing the ma­jor­ity of chil­dren law­yer­less, ac­cord­ing to KIND Pres­id­ent Wendy Young.

RE­LATED: This Is the Wildly Com­plic­ated Ap­plic­a­tion for Asylum

On the first of every month, KIND opens an on­line re­fer­ral pro­cess to help minors re­ceive coun­sel. With­in 30 minutes on Ju­ly 1, the max­im­um num­ber had been signed up in two of KIND’s eight of­fices. By 3 p.m. that day, six of­fices had reached their cap.

Thus, many im­mig­ra­tion ad­voc­ates are ar­guing that leg­al rep­res­ent­a­tion should be re­quired for the thou­sands of chil­dren from El Sal­vador, Guatem­ala, and Hon­dur­as sur­ging in­to the United States. They’re flee­ing eco­nom­ic dis­par­it­ies and a spike of vi­ol­ence plaguing the re­gion — prob­lems so in­tense the United Na­tions calls for in­ter­na­tion­al pro­tec­tions and law­makers coined it a “hu­man­it­ari­an crisis.”

Pres­id­ent Obama’s $3.7 bil­lion emer­gency sup­ple­ment­al re­quest al­loc­ates $15 mil­lion for provid­ing dir­ect leg­al rep­res­ent­a­tion ser­vices to chil­dren in im­mig­ra­tion pro­ceed­ings. An­oth­er $2.5 mil­lion would ex­pand the leg­al ori­ent­a­tion pro­gram, which provides aid to adults and the spon­sors of chil­dren in the im­mig­ra­tion court sys­tem.

“We’re really glad that he has some of the money in there, but it’s a drop in the buck­et in terms of the need,” said Greg Chen, ad­vocacy dir­ect­or at the Amer­ic­an Im­mig­ra­tion Law­yers As­so­ci­ation. “It’s just not go­ing to be enough.”

HOW IT WORKS

A Cus­toms and Bor­der Patrol agent ap­pre­hends an un­ac­com­pan­ied Cent­ral Amer­ic­an child as he or she crosses the U.S.-Mex­ico bor­der. A brief screen­ing en­sues.

Then the minor is auto­mat­ic­ally giv­en a no­tice to ap­pear in court. With­in 72 hours, the minor is placed in the Health and Hu­man Ser­vices De­part­ment’s cus­tody, where a trained pro­vider con­ducts an ini­tial in­ter­view to de­term­ine if the child may be a vic­tim of ab­use, a crime, or traf­fick­ing, Mark Green­berg, act­ing as­sist­ant sec­ret­ary for HHS’s Ad­min­is­tra­tion for Chil­dren and Fam­il­ies, said at a Sen­ate com­mit­tee hear­ing last week.

The child is giv­en a leg­al-rights present­a­tion while in HHS’s care and be­fore the de­part­ment finds a par­ent, re­l­at­ive, or spon­sor for the minor to live with while un­der­go­ing im­mig­ra­tion pro­ceed­ings. The gov­ern­ment is not re­quired to provide leg­al rep­res­ent­a­tion to chil­dren, which is the crux of a law­suit the Amer­ic­an Civil Liber­ties Uni­on, the Amer­ic­an Im­mig­ra­tion Coun­cil, the North­w­est Im­mig­rant Rights Pro­ject, Pub­lic Coun­sel, and K&L Gates filed last week against the fed­er­al gov­ern­ment.

Visas are avail­able for vic­tims of traf­fick­ing and cer­tain crimes, as well as for those who were ab­used, neg­lected, or aban­doned by one or both par­ents, ac­cord­ing to the Amer­ic­an Im­mig­ra­tion Coun­cil.

Asylum is the form of re­lief most un­ac­com­pan­ied minors stream­ing across the bor­der likely have a vi­able claim to, ac­cord­ing to Jack­son, who has worked rep­res­ent­ing chil­dren at the Cali­for­nia-based pro bono law firm Pub­lic Coun­sel for the past dec­ade. It’s an an in­ter­na­tion­al pro­tec­tion giv­en to refugees in the United States with a well-foun­ded fear of per­se­cu­tion on the grounds of race, re­li­gion, na­tion­al­ity, polit­ic­al opin­ion, or mem­ber­ship in a cer­tain so­cial group.

“While it’s the one most chil­dren have le­git­im­ate claim to, it’s also the one that’s the most leg­ally com­plex,” Jack­son said.

The asylum ap­plic­a­tion must be filled out in Eng­lish. At­tor­neys and com­munity-based or­gan­iz­a­tions can provide help; the U.S. Cit­izen­ship and Im­mig­ra­tion Ser­vices does not provide as­sist­ance, be­cause it would present a con­flict of in­terest, US­CIS spokes­man Chris­toph­er Bent­ley wrote in an email.

Once the ap­plic­a­tion is com­plete, an at­tor­ney — if the child has one — be­gins to build a case.

The at­tor­ney works to cre­ate a rap­port with the un­ac­com­pan­ied minor to help the child open up about past trau­mas. These in­cid­ents will not only need to be de­tailed to the at­tor­ney, but also told later to an asylum of­ficer, ac­cord­ing to Jack­son.

“The real­ity is, it may be very, very dif­fi­cult for chil­dren to talk about the things that have happened to them,” she said. “They may avoid talk­ing about them. They may min­im­ize them. They may be­come so dis­traught that they ex­hib­it be­ha­vi­ors, like re­fus­ing to look someone in the eye, shak­ing, turn­ing red.”

This be­ha­vi­or may make it seem like the child is ly­ing. That’s why at­tor­neys try to find ad­di­tion­al evid­ence through in­ter­view­ing wit­nesses in­side and out­side the U.S., search­ing for med­ic­al re­cords and work­ing with ex­perts on the chil­dren’s home coun­tries, Jack­son said.

The asylum of­ficer has the first say, and the claim was gran­ted just 34 per­cent of the time for im­mig­rants of any age un­der­go­ing re­mov­al pro­ceed­ings from Oct. 1 last year to March 31, ac­cord­ing to US­CIS data.

If the claim is ap­proved, the child goes be­fore an im­mig­ra­tion judge to re­quest ter­min­a­tion of the re­mov­al pro­ceed­ings based on the child’s new asylee status.

If that is denied, an im­mig­ra­tion judge hears the case in a courtroom-like set­ting. There’s the child and his or her coun­sel — if the minor even has rep­res­ent­a­tion — on one side. On the oth­er, the gov­ern­ment is rep­res­en­ted by a U.S. Im­mig­ra­tion and Cus­toms En­force­ment at­tor­ney likely ar­guing that the child should be de­por­ted, ac­cord­ing to Jack­son.

With leg­al rep­res­ent­a­tion, it’s pos­sible for a child to be gran­ted asylum, which provides a path­way to cit­izen­ship, Young said. But without coun­sel, it’s “vir­tu­ally im­possible.”

“Bot­tom line: The laws are com­plic­ated, and then you put a child through that with their lack of ca­pa­city to un­der­stand,” she said. “The res­ults are not go­ing to be pos­it­ive, be­cause it’s just too hard for chil­dren to do it. But that’s what we have — un­for­tu­nately — and it’s get­ting worse.”

Cla­ri­fic­a­tion: A quote from im­mig­ra­tion at­tor­ney Kristen Jack­son has been altered from a pre­vi­ous ver­sion.

{{ BIZOBJ (video: 5079) }}

HOW IT WORKS

A Cus­toms and Bor­der Patrol agent ap­pre­hends an un­ac­com­pan­ied Cent­ral Amer­ic­an child as he or she crosses the U.S.-Mex­ico bor­der. A brief screen­ing en­sues.

Then the minor is auto­mat­ic­ally giv­en a no­tice to ap­pear in court. With­in 72 hours, the minor is placed in the Health and Hu­man Ser­vices De­part­ment’s cus­tody, where a trained pro­vider con­ducts an ini­tial in­ter­view to de­term­ine if the child may be a vic­tim of ab­use, a crime, or traf­fick­ing, Mark Green­berg, act­ing as­sist­ant sec­ret­ary for HHS’s Ad­min­is­tra­tion for Chil­dren and Fam­il­ies, said at a Sen­ate com­mit­tee hear­ing last week.

The child is giv­en a leg­al-rights present­a­tion while in HHS’s care and be­fore the de­part­ment finds a par­ent, re­l­at­ive, or spon­sor for the minor to live with while un­der­go­ing im­mig­ra­tion pro­ceed­ings. The gov­ern­ment is not re­quired to provide leg­al rep­res­ent­a­tion to chil­dren, which is the crux of a law­suit the Amer­ic­an Civil Liber­ties Uni­on, the Amer­ic­an Im­mig­ra­tion Coun­cil, the North­w­est Im­mig­rant Rights Pro­ject, Pub­lic Coun­sel, and K&L Gates filed last week against the fed­er­al gov­ern­ment.

Visas are avail­able for vic­tims of traf­fick­ing and cer­tain crimes, as well as for those who were ab­used, neg­lected, or aban­doned by one or both par­ents, ac­cord­ing to the Amer­ic­an Im­mig­ra­tion Coun­cil.

Asylum is the form of re­lief most un­ac­com­pan­ied minors stream­ing across the bor­der likely have a vi­able claim to, ac­cord­ing to Jack­son, who has worked rep­res­ent­ing chil­dren at the Cali­for­nia-based pro bono law firm Pub­lic Coun­sel for the past dec­ade. It’s an an in­ter­na­tion­al pro­tec­tion giv­en to refugees in the United States with a well-foun­ded fear of per­se­cu­tion on the grounds of race, re­li­gion, na­tion­al­ity, polit­ic­al opin­ion, or mem­ber­ship in a cer­tain so­cial group.

“While it’s the one most chil­dren have le­git­im­ate claim to, it’s also the one that’s the most leg­ally com­plex,” Jack­son said.

The asylum ap­plic­a­tion must be filled out in Eng­lish. At­tor­neys and com­munity-based or­gan­iz­a­tions can provide help; the U.S. Cit­izen­ship and Im­mig­ra­tion Ser­vices does not provide as­sist­ance, be­cause it would present a con­flict of in­terest, US­CIS spokes­man Chris­toph­er Bent­ley wrote in an email.

Once the ap­plic­a­tion is com­plete, an at­tor­ney — if the child has one — be­gins to build a case.

The at­tor­ney works to cre­ate a rap­port with the un­ac­com­pan­ied minor to help the child open up about past trau­mas. These in­cid­ents will not only need to be de­tailed to the at­tor­ney, but also told later to an asylum of­ficer, ac­cord­ing to Jack­son.

“The real­ity is, it may be very, very dif­fi­cult for chil­dren to talk about the things that have happened to them,” she said. “They may avoid talk­ing about them. They may min­im­ize them. They may be­come so dis­traught that they ex­hib­it be­ha­vi­ors, like re­fus­ing to look someone in the eye, shak­ing, turn­ing red.”

This be­ha­vi­or may make it seem like the child is ly­ing. That’s why at­tor­neys try to find ad­di­tion­al evid­ence through in­ter­view­ing wit­nesses in­side and out­side the U.S., search­ing for med­ic­al re­cords and work­ing with ex­perts on the chil­dren’s home coun­tries, Jack­son said.

The asylum of­ficer has the first say, and the claim was gran­ted just 34 per­cent of the time for im­mig­rants of any age un­der­go­ing re­mov­al pro­ceed­ings from Oct. 1 last year to March 31, ac­cord­ing to US­CIS data.

If the claim is ap­proved, the child goes be­fore an im­mig­ra­tion judge to re­quest ter­min­a­tion of the re­mov­al pro­ceed­ings based on the child’s new asylee status.

If that is denied, an im­mig­ra­tion judge hears the case in a courtroom-like set­ting. There’s the child and his or her coun­sel — if the minor even has rep­res­ent­a­tion — on one side. On the oth­er, the gov­ern­ment is rep­res­en­ted by a U.S. Im­mig­ra­tion and Cus­toms En­force­ment at­tor­ney likely ar­guing that the child should be de­por­ted, ac­cord­ing to Jack­son.

With leg­al rep­res­ent­a­tion, it’s pos­sible for a child to be gran­ted asylum, which provides a path­way to cit­izen­ship, Young said. But without coun­sel, it’s “vir­tu­ally im­possible.”

“Bot­tom line: The laws are com­plic­ated, and then you put a child through that with their lack of ca­pa­city to un­der­stand,” she said. “The res­ults are not go­ing to be pos­it­ive, be­cause it’s just too hard for chil­dren to do it. But that’s what we have — un­for­tu­nately — and it’s get­ting worse.”

Cla­ri­fic­a­tion: A quote from im­mig­ra­tion at­tor­ney Kristen Jack­son has been altered from a pre­vi­ous ver­sion.

{{ BIZOBJ (video: 5079) }}

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