Traumatic Emigrations

Human Rights

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.

According to Butterfield, while some unaccompanied minors qualify for political asylum or "special immigrant juvenile" status and are allowed to remain in this country, approximately one-third of these children are deported back to their home countries. This figure seems to contradict the U.N. Convention relating to the Status of Refugees, which states that "no one should be returned to a country where he or she is at risk of serious human rights abuses."

Until recently, Immigration Naturalization Service (INS) oversaw the custody of unaccompanied children entering the U.S. – a preposterous conflict of interest considering INS was also in charge of deportations. After drawing a great deal of criticism for its child immigration practices, the U.S. government transferred control of minors' care to the Department of Health and Human Services' ORR through the passing of the Homeland Security Act in 2003. (The government turned enforcement responsibilities over to the Department of Homeland Security.)

Butterfield welcomed the shift of authority from INS to ORR. "The Department for Unaccompanied Children's Services [an ORR office] is working hard to place children in settings that are not 'jail,' that can offer them support and education and recreation, and can help unite them with guardians or family members who may already be living in the United States."

Still, organizational changes have been slow to take effect. An AILA publication from 2004 concluded that while "the number of children released from detention and placed in foster care has increased," the quality of care remains fairly unchanged. Most notably, unaccompanied minors still do not have the much-needed access to legal representation, which is why dedicated immigration attorneys have sought to take matters into their own hands.

In December 2004, the United Nations High Commissioner for Refugees (UNHCR) gave a grant to AILA and the U.S. Committee for Refugees to create the National Center for Refugee and Immigrant Children. The center will rely upon the pro bono services of lawyers like Kathy Moccio, and was made possible, largely, by a donation from UNCHR Goodwill Ambassador Angelina Jolie.

"For the first time," Moccio said, "children released from detention will have a national organization that will work to provide them with the assistance of a pro bono immigration attorney. As you can imagine, having an advocate who is there to help a child in immigration proceedings will make immense strides in helping the child to understand the proceedings and to adequately prepare and present a case for relief." AILA firmly believes that legal representation enhances the possibility of a positive outcome in an immigration appeal. And with only 10 percent of unaccompanied children being represented in court by a legal counsel, the National Center couldn't open soon enough.

Butterfield hopes the center will build support for the passage of legislation that can improve both detention and the children's court experience. Already, a congressional effort is underway to ensure that unaccompanied minors are provided both guardians ad litem and legal representation. The Unaccompanied Alien Child Protection Act was introduced by California Sen. Diane Feinstein, who has made its passage through Congress a major focus of her administration. This legislation would also guide ORR on the proper treatment of unaccompanied children, and require all immigration officers who deal with unaccompanied minors to undergo special training to help them better understand the plight and needs of these children.

With Feinstein's Child Protection Act gaining steam in Congress and the National Center already training pro bono attorneys, there's hope for the thousands of unaccompanied minors who enter the U.S. annually. Perhaps one day soon, immigrant children will no longer have to face the complexities and terrors of the asylum process alone.

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