Family Restoration for Unaccompanied Minors

The following blog post is written by student staff member and Regent Law 2L, Maitte Barrientos.

The number of unaccompanied minors crossing the border into the United States (and other industrialized countries) has significantly increased in the past couple of years.  Unaccompanied minors are children (or a person under a country’s legal age of majority) separated from both parents, and are not with and being cared for by a guardian or other adult who by law or custom is responsible for them.  Research shows that the average unaccompanied minor in the United States is fifteen years old, although some have been as young as eighteen months old.  These children seek asylum as they are either abandoned in their homelands, sent away by their families, fleeing from military service, or child marriage, or female genital mutilation, or gang violence/forced recruitment, or are victims of smuggling and sex trafficking. Upon arrival into the United States, they are apprehended by the government and sent to detention centers (sometimes for months) where they will be placed in removal proceedings without a right to appointed counsel. Similarly, even if they happen to be released to a family member or sponsor to wait for an immigration hearing they are still in removal proceedings and not offered a green card or granted any kind of legal status.  Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir. 1974).  (Professor Kohm has written about this a bit in her article on immigration reform for children.) These lack of due process rights and long detention periods, in a confusing and restrictive jail-like setting, not only exacerbates the child’s trauma but encourages them to seek voluntary departure (which may impact their immigration eligibility in the future) exposing them to the violent persecution they were fleeing in their home country.

Understanding the procedures & available remedies for unaccompanied minors is a key to assisting these children. While every legal matter regarding children must be handled according of the best interests of the child, the procedures set in place for minors seeking asylum in the United States are governed by federal law, and are largely not in accordance with the best interest of the child standard.  An unaccompanied minor may obtain lawful permanent residence status in one of three ways: (1) as a special immigrant juvenile; (2) victim of trafficking under the Violence Protection Act of 2000; or (3) asylum.  The first two remedies are for children who played no active role in their migration journey and the third is the only remedy for children who did play an active role.  As a special immigrant juvenile the child will be in the custody of a state’s juvenile system and left to the judge to determine whether the child has faced abuse, neglect or abandonment in another country.  Only once that predicate order is made can the Attorney General allow for an application for special immigrant status.  If the child is a victim of trafficking, and suffered physical/mental abuse, they would qualify for a U-Visa and be allowed to remain.  Similarly, if the child has suffered a severe form of trafficking in persons and can demonstrate unusual and severe harm if removed from the U.S., they would qualify for a T-Visa (which is essentially a nonimmigrant visa and only after three years may the child apply for permanent resident status). 

This leaves the last recourse, asylum, to children who do not fit into the first two categories.  Asylum, however, is not an easy task to prove as the child may only bring a claim if they can prove a well-founded fear of persecution based on race, religion, nationality, political opinion or membership of a particular social group.  It is difficult for children fleeing gang recruitment and violence to establish these elements without any legal representation in this complex area of law.  Further, these kids find themselves making life impacting decisions in a new culture where the language barrier and stressful factors play a coercive part.   

Legislation tailored to the rights of child refugees and unaccompanied minors is key to accomplishing what is in the best interest for a child in the U.S.  One potential solution might be to categorize unaccompanied minors as a particular social group capable of persecution.  Secondly, the initial reason these children are persecuted is because they either lack parents or their government refuses (or is unable) to protect them from the violence.  This vulnerability should distinguish minor children from other youth and serve to define them as a particular “group.”  Another solution might be for the United States to ratify the Convention on the Rights of the Child (hereinafter “CRC”), the international legal document on children’s rights.  Though scholars disagree on the effectiveness of the CRC, others argue it gives children the right to a legal identity (Article 28), family unity (Article 9), freedom from arbitrary arrest or detention (Article 37), and protection to children in vulnerable conditions (such as those seeking asylum) under Article 22 of the CRC.  Some scholars, however, disagree and argue that a rights framework does not protect children as well as the best-interest-of-the-child standard.  A third solution might be to provide a right to counsel for unaccompanied minors. Children generally have no rights because of their legal incapacity to make informed decisions.   While the Executive Office for Immigration Review (EOIR) has made efforts to recruit pro bono legal aid for unaccompanied minors, they do not allow organizations to conduct presentations on a child’s legal status (in their native language), they restrict access to detention centers, phone calls to attorneys, house children in facilities which are too far from near legal services or may transfer a child to another center without legal notice to their attorneys or agents.  None of this is in a child’s best interest and there needs to be substantial legislative reform that makes it a due process violation for children to not be afforded right to adequate counsel. While there have been acts in recent years which serve as a starting point for unaccompanied minors, legislative reform should encourage not only child protection, but also some sort of more suitable foster care rather than life in a detention facility. 

The best interest of the child standard should be afforded to refugees who come from all over the world fleeing violent persecution and have no other place where their legal identities may be established and respected.  Although immigration reform may be controversial, the rising surge of unaccompanied minors can no longer be ignored.  Recognizing and respecting the best interests of refugee children and helping them heal from trauma may afford them a better future.