Traumatic Emigrations

The desperate plight of immigrant children who enter the U.S. by themselves becomes frightfully clear when immigration attorney Kathy Moccio describes the case of an Asian boy who was smuggled into the country.

"It was an emotional rollercoaster," Moccio says. "He was totally alone in this country. The smugglers were trying to get him released into their custody, which presented a serious risk to his safety. Twice he tried to commit suicide. Fortunately, he obtained a wonderful foster family and was able to receive medical treatment to help him cope with his past and present. We worked to develop a strong case and after a series of hearings, he was granted political asylum."

Many unaccompanied minors who enter this country are not as fortunate. The children are repeatedly denied access to legal counsel, and, unable to face the terrifying bureaucracy of an unjust judicial system alone, are often dumped into detention facilities with criminals.

Jeanne Butterfield, executive director of the American Immigration Lawyers Association (AILA), says approximately 6,200 children enter the U.S. each year, unaccompanied by a parent or legal guardian. While some of these children seek asylum, others are forcefully brought into the country for sweatshop labor or sexual exploitation. The majority of the children were persecuted in their own countries and often victimized by child traffickers or sexual predators. Yet, after traumatic emigrations, they must suffer through a legal process that, Butterfield says, is "nothing short of Kafkaesque."

Upon entering the U.S., unaccompanied minors are placed in the custody of the Office of Refugee Resettlement (ORR), though immigration enforcement agents routinely deny these children basic rights that are guaranteed by international and domestic standards.

"The kids can be anywhere in age from three or four years old up to 18," Butterfield says. "They don't understand the legal system, they don't know what rights they have, they don't know what kinds of remedies might be available to them under our immigrations laws. That's why they need a lawyer to go to court with them and to be their advocate."

In 2003, an Amnesty International report estimated that about one-third of unaccompanied minors are detained in jail-like facilities more often used for juvenile offenders. Although they are not charged with any crime, they can be held for months or even years while their immigration status is being resolved. This inhuman treatment violates the decision in the 1997 class action lawsuit of Flores, et al. v. Janet Reno, which requires authorities to treat children held in immigration custody with "dignity, respect, and special concern for their vulnerability as minors."

In a survey of detention facilities, Amnesty International found that immigrant children are subjected to a number of callous treatments, including the excessive use of force, restraint and strip searches. They also concluded that unaccompanied girls are further deprived, since they are fewer in number and are therefore at greater risk to be placed with adults or juvenile delinquents. Amnesty established that fewer than half of the unaccompanied children entering the U.S. have access to legal counsel in an immigration court, while AILA estimates that only 10 percent of unaccompanied minors are currently represented in court.

Typically, United States law provides a guardian ad litem – a court-appointed professional caregiver – to children who must confront the legal system alone. Current U.S. asylum laws, however, do not provide guardians ad litem, nor do they guarantee legal aid of any kind. So unaccompanied immigrant minors are left to navigate the complicated legal process unaided. Moccio disagrees with immigration officials' claim that minors are not being denied their rights. "One of the problems is that non-citizens have very few rights and immigration officers are given a lot of discretion to decide cases," she points out.