The fate of 47 thousand children, most of them from Central America and the prospect of 43 thousand more children crossing the Texan border illegally by the end of 2014 poses a serious challenge to the laws of the United States and our humanitarian values. How should we treat these children? Should they be united with parents and family members living in the US or deported for entering the U.S. without sufficient reasons to justify asylum?
Three quarters of recently arrived and unaccompanied children originate from the three northern Central American states: Honduras, El Salvador and Guatemala. The phenomenon of children seeking to join their parents in the United States is not new. The difference lies in the number of children making their way from Central America to cross the Rio Grande Valley into South Texas. According to the Border Patrol, apprehension of unaccompanied children increased from 16,067 in FY 2011 to 24,481 in FY 2012 and 38,833 in FY 2013. During the first eight months of FY 2014, 47,017 children were apprehended, most of them from Honduras. If this flow continues at the current rate, the Border Patrol anticipates that 90,000 unaccompanied children could be apprehended by the end of the fiscal year (FY) on September 30. The journey is fraught with the danger of depending on human traffickers.
Children originating from a non-contiguous country are subject to distinct legal procedures from those originating in Mexico or Canada. The former are transferred from the Border Patrol to the Office of Refugee Resettlement (ORR), an agency of the Department of Health and Human Services (HHS) that is responsible for processing and sheltering unaccompanied minors. Under the Trafficking Victims Protection Reauthorization Act (PDF) (TVPRA) children from non-contiguous states must be transferred to ORR within 72 hours and simultaneously placed in removal proceedings with the Executive Office for Immigration Review (EOIR), within the Department of Justice.
The reality is that insufficient space exists to house the large number of apprehended children and the Immigration Courts are seriously overwhelmed by the number of removal proceedings. Consequently children wait on average 578 days before a Hearing. During that time, the child is placed with a parent or family member who must vouch that the child will appear in Court. The Migration Policy Institute anticipates that approximately 85-90 percent of children are placed with a parent or close relative. Thus, the current procedures provide the incentive for parents to be reunited with their children while awaiting their Hearing date. Emotional bonds are reestablished, schools attended, vaccines given and hope raised that the child can remain in the United States.
Before joining their families, ORR is responsible for lodging and feeding the child for up to 45 days. But current HHS centers are already filled in Texas, California and Oklahoma. To meet this need, the administration in early June requested $1.57 billion in emergency funding to house, feed, process and transport these children before they can be released to join relatives, or be placed in foster care.
The principal grounds for remaining in the United States are refugee asylum – fear of persecution for reasons of race, religion, nationality and membership in a particular social group or political opinion – and Special Immigrant Juvenile Status, granted to children who can establish that they were abused, neglected or abandoned by one or both parents. The Vera Institute estimates that 40 percent of unaccompanied children have humanitarian claims recognized in U.S. and international courts. However, the principal causes that send children to the United States are family reunification, poverty and fear of violence from local criminal organizations. Unless they were abused by traffickers on their journey to the U.S. border, it is hard for defense attorneys to prove the legal grounds required for refugee status. Consequently, half the children may eventually be sent home. In the meantime while they await their Court Hearing, they have a right to attend school and access health care, posing costs upon State and District budgets. To date in FY 2014, 3,300 children have been discharged to relatives or foster care in New York State, alone.
Two push factors and two pull factors explain the recent surge in unaccompanied children migrants.
- Economic conditions with endemic poverty, high youth unemployment and a close correlation between poor geographic areas and outflows of child migrants.
- Violence in the region. Organized criminal violence plagues the three Central American countries with homicide rates among the highest in the hemisphere. Recruitment into maras, or other local gangs is pervasive and grandparents seek to protect their grandchildren by sending them to join a parent al norte.
- It is estimated that 2.5 million Central Americans live in the United States, 60 percent of which are either undocumented or live with Temporary Protective Status (TPS) which denies them the right to petition for family reunification. Hope for reunification with children and better living standards enable family members in the United States to pay the $6-7,000 to traffickers who bring the child from his home in Central America to the U.S. side of the border. When Congress created TPS in 1990 and extended it to 220,000 Salvadorans in 2001, we failed to anticipate that they would seek to unite with their children.
- Criminal social networks, operating throughout the Americas have created human trafficking rings that offer door to door service. The Mexican government’s combat against these criminal organizations has pushed them into alternative profitable ventures, including the smuggling of Central American children. We should expect that as U.S. policy changes so too will the behavior of these organizations. They will react smartly to evolving U.S. policies.
What are the appropriate U.S. policy responses?
There is no easy solution to this complex problem which has existed for over a decade, but whose surge in numbers presents a challenge to U.S. policy makers and resources. Solutions require immediate action from law enforcement and HHS as well as engagement on longer term solutions by the State Department in support of the Central American sending nations.
- Federal law enforcement authorities must confront and prosecute these criminal organizations which profit off unaccompanied children, as well as other undocumented migrants. Transnational efforts are needed to identify them and their work in the sending countries, as well as to disrupt their money laundering practices.
- Apprehended children need to be screened by ORR as swiftly as possible to determine the validity of their claims. The White House's anticipated request for congressional action on a supplemental appropriation of an additional $2 million for immigration courts, among other issues, will not prove sufficient to legally process newcomers as well as hear the backlog of cases. Therefore, greater attention should be given to hearings for children arriving after July 2014 with the intent of sending a strong message to the sending country that their unaccompanied children will not be able to join their parent or family member while they wait 18 months or more for a court appearance.
- Swift resolution of refugee asylum and Special Immigration Status cases will require a significant budget to increase the number of asylum officers, immigration judges and to train both prosecution and defense attorneys. This may come from civil society, but national support for training in the law could help to ensure that young defendants have a guide through the mysterious world of immigration law.
- The backlog of ORR cases will take time to work through and should be accomplished, but the immediate task is to send a strong disincentive message to the adults who both send and receive these children.
- Distinctive treatment between those arriving from Mexico and Canada and those arriving from non-contiguous states may have to end. Nearly all Mexican unaccompanied children are quickly returned to Mexico. With the assistance of Consuls from the countries of origin, a decision to deny asylum and Special Immigration Status requires governmental assistance in the repatriation and reintegration of the child back home. Civil society should monitor the returning children to ensure that they are not abused.
- Over the longer term, the perennial concern for economic development and education in the sending nations of Central America endures. Levels of poverty have not decreased enough to ensure job creation and quality education. Standards of living must increase in order to persuade those who care for the children that the risks of the journey are not worth the gains in the United States.
Together, these policy recommendations seek to balance our respect for immigration laws and due process with humanitarian values which ensure that the child will be cared for both in the United States and, when appropriate, upon return to the sending country.