A Fair and Responsible Response to the Recent Influx of Unaccompanied Immigrant Minors

August 5, 2014

The recent influx of unaccompanied minors from Central America entering the country requires a prompt and evenhanded policy response.  Unfortunately, the House of Representatives recently passed a misguided proposal that is dangerous and unnecessarily punitive, and that does not address the root causes of the current problem.  A much different strategy is necessary to safely and effectively solve this problem in a way that is consistent with our fundamental values as a country.

At its core, this recent increase in immigrant children crossing the border is a humanitarian issue and should be addressed with that recognition.  By putting aside political posturing and focusing on the real problems driving this crisis, we can resolve the issue fairly and effectively. We can do so without compromising our core values of fairness and due process and without unnecessarily putting these children at risk of further harm.

A proper solution to this problem requires four interconnected components:

  1. Increased investment in the immigration court system and expedited hearings so that the children’s immigration cases can be resolved promptly;
  2. Ensuring these children have lawyers to represent them;
  3. Providing full legal screening for potential immigration protection early in the process before children are released to family members so that those children without the prospect of legal relief can have their cases promptly resolved;
  4. Foreign policy initiatives that address the reasons why children are risking their lives to flee to the United States.

By taking these steps, we can resolve the current humanitarian crisis and refocus attention to the broader and much-needed task of comprehensively reforming our dysfunctional immigration system.

Background

For many years now, unaccompanied immigrant children have arrived in our country from various parts of the world. Children fleeing the Holocaust were some of the first minors known to come here on their own.  Many of these children are fleeing persecution, severe violence, abuse or extreme poverty. Others are trying to reunify with family members in the United States, or are simply seeking a better life here in our country.

When the Department of Homeland Security takes unaccompanied immigrant children into custody, the children are placed into deportation proceedings. Pursuant to the Homeland Security Act, they are then transferred to the custody of the federal Office of Refugee Resettlement (ORR) for their care and custody while their immigration proceedings are pending.  Typically, ORR temporarily places these children in a network of shelters around the country (including several here in Chicago), and then seeks to place the children with family members residing in the United States until the immigration courts adjudicate their cases.

Many of these children can qualify to stay in the country under our immigration laws. Most often, the legal basis of their claims include asylum, special immigrant juvenile status (for victims of abuse or neglect), or special visas available to victims of trafficking and other serious crimes.  Many other children do not qualify for relief and will ultimately be returned to their home countries after their immigration cases are resolved.

A number of programs around the country, including the National Immigrant Justice Center based here in Chicago, provide legal assistance to unaccompanied immigrant children during their immigration proceedings.  As noted recently by the Wall Street Journal, a comprehensive new report found that kids represented by lawyers have a far better chance of being granted legal relief than those who proceed on their own.   However, under current law, these children are not guaranteed access to counsel. In many parts of the country, they are left to face these proceedings without a lawyer to represent them, often with devastating consequences.

The Current Problem

The recent influx of children from Central America stems from a humanitarian crisis taking place in those countries, where kids increasingly are fleeing threats from organized crime, violence and extreme poverty.  As the number of children apprehended at or near the border grew over the past year, the existing backlogs in the immigration courts (which result from insufficient funding and resources) have grown worse, with cases now taking up to two years or more to be resolved.

The influx of children at the border also has put immense pressure on ORR, which has not had sufficient resources to place this volume of kids in shelters in timely fashion. The result is that kids and families are being placed at many temporary facilities that are not well suited to properly caring for them.  For the children placed with families while their immigration court cases are pending, many wait for years before their cases are heard. The delays are due to the immigration court backlogs, which exist regardless of whether a child has potential legal relief, further aggravating the larger problem of timely adjudication of immigration cases.

While the President and policymakers on both sides of the aisle have offered evenhanded proposals to address the current problem, the package recently approved by the House is likely to only further aggravate the problem.  The House-passed legislation would move to a system where kids can be deported by border patrol officials without ever having a hearing before a judge. The House-passed policy is inconsistent with our nation’s core values, and puts many children at great risk of harm.  In addition, proposals that simply expedite hearings for these kids — without providing the resources necessary to ensure they are represented by counsel and have adequate time to prepare their cases — are an unfair and ineffective solution.  Similarly, to increase enforcement on a border that has already experienced an unprecedented expansion of security infrastructure in recent years would be an ineffective use of limited resources that can be better spent addressing the root causes of the problem.

The Solution

As noted at the outset of this post, a proper solution to this problem requires four interconnected components.

First, the immigration court system needs the proper investment of resources to be able to handle all cases, including those involving unaccompanied immigrant children, in timely fashion.  For all the money our country has spent on immigration enforcement, only a small fraction has been spent on ensuring that the immigration courts work fairly and efficiently.  Fixing that problem will require sufficient resources for both the courts themselves and to ensure both kids and adults in the system have access to counsel.  Investments of this type have proven to be very cost-effective in the past, and helped to move cases through the system more efficiently. Such improvements would also save money that is otherwise unnecessarily directed toward detention and other enforcement resources.

Second, funding and resources must be provided to ensure all kids in the system have access to counsel throughout the adjudication of their immigration hearings.  As noted earlier, having a lawyer makes all the difference in these proceedings, and also has been proven to be very cost-effective for the overall system.

Third, once the proper capacity exists in the immigration courts, the courts and ORR must coordinate to re-design the adjudication process and timeline for court cases. While expediting the overall timeline for hearing children’s cases, expert lawyers and advocates should screen children before they are released to family members to determine whether they have potential legal relief.  Proper screening requires sufficient time for lawyers and advocates to determine whether the child may have a viable claim for legal protection, and a 30-60-day time frame should be sufficient to make at least initial determinations. With high-quality screening and legal representation, children can obtain a full and fair opportunity to seek legal protection. For children who have no potential relief, their cases can be promptly resolved before they are released to family.

Finally, we need to look carefully at foreign policy initiatives that address the root causes of the surge in child migration and explain why children are risking their lives to flee to the United States.  To the extent that this influx may have been driven in part by misinformation about applicable U.S. law and policy, the Administration has made progress in educating leaders and the public in the affected countries.  These and other efforts already have resulted in a significant drop in the number of kids being apprehended at the border.

In addition, allowing children to apply for refugee status in their home countries when they are facing persecution and violence can prevent those kids from making the dangerous journey to the United States while still allowing them to obtain protection.   Proposals to create systems for safe in-country refugee processing should be given serious consideration.

For the many kids here who do not qualify for legal status in the United States, we need to do all we can to make sure they are safely repatriated. We must continue to work with their governments to improve conditions in their home countries.  The Migration Policy Institute is a good source for recommendations on those issues.