Do the Right Thing: Upholding the United States' Commitment to Protect Children Fleeing Persecution

Anadelcy was fifteen years old when she witnessed a gang member murder a young man in her town in El Salvador. A curious and bright young girl, Anadelcy was at school on that particular day studying for exams. As she looked out a window of the classroom, she saw a member of the 18 Gang shoot a young man at point blank range. Unfortunately for her, the murderer saw her. Because of the very real threat that gang members would want to silence her, she fled the country shortly after the incident and arrived at the US Southwest border in 2012 where she was stopped by Customs and Border Protection and placed in deportation proceedings. Luckily, through Catholic Charities, a non-governmental organization advocating for greater respect for migrants and refugees, Anadelcy was able to find pro bono counsel to represent her and was ultimately granted asylum. She recently completed high school and has been accepted to a university where she intends to study medicine.[1]

Anadelcy is one of the many pro bono unaccompanied minors that our law firm represents before the United States Citizenship and Immigration Service (USCIS) and the Immigration Courts. All of our young pro bono clients are from Guatemala, Honduras and El Salvador and report that gang-related violence and persecution forced them to flee their villages, towns and cities in search of protection in the United States. Their stories are the same. As soon as they reach puberty, the boys face forced recruitment and the girls become targets for unwelcomed sexual advances by gang members. If they refuse to cooperate, they face threats, physical assault and sexual violence. As they grow older, many of these boys and girls remain hidden at home until they can flee to the United States. The danger they face on their journeys to the United States pales in comparison with the terror at home.

Since 2011, there has been an alarming increase in the numbers of unaccompanied minors arriving at the Southwest border. The majority of these children come from El Salvador, Guatemala, Honduras and Mexico. From 2004 until 2011, the number of children apprehended at the border averaged around 6,000 to 8,000. The number jumped to over 13,000 in 2012 and almost doubled to 24,000 in 2013. Recent government estimates project an over three-fold increase to 90,000 for 2014 and 130,000 in 2015.

Recognizing the humanitarian nature of this unprecedented influx, President Obama on June 2, 2014 directed an interagency Unified Coordination Group to address the situation. The President appointed the Federal Emergency Management Agency (FEMA) Administrator Craig Fugate as the coordinating official to head agency efforts in providing relief to the affected children.[2] In order to care for these children, the President has ordered officials to open emergency shelters on military bases.

Despite its stated commitment to treat the situation as humanitarian in nature, the White House now seeks additional powers from the US Congress to fast-track deportation proceedings against the unaccompanied children on the border.[3] As part of this request, the Administration is soliciting additional discretionary authority from Congress to immediately repatriate children from Guatemala, Honduras and El Salvador. In order to carry out these expedited deportations, the White House will be seeking funds to hire more Immigration Judges, expand detention facilities where the children will be held, and finance an aggressive deterrence strategy in the Central American countries from where these children are fleeing. The likely amount being requested is more than two billion dollars. While the letter ends with a request for “…the resources necessary to appropriately detain, process, and care for children and adults…,” it does not specifically mention providing legal counsel for unaccompanied children. US immigration law is widely considered to be more complex than the tax code. If unable to obtain pro bono counsel, these children will face the complexities of the immigration removal system on their own.

The Administration’s plan for fast-track procedures runs contrary to refugee protections introduced and supported by and during the Bush Administration. The anti-trafficking laws passed during that time established strict protocols for handling unaccompanied minors which require that children from Central America be screened by a border patrol agent and transferred within 72 hours to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services (DHHS). The DHHS must act within the best interest of the child which often results in the transfer of children into foster care, or more frequently, to the custody of a family member in the United States. The percentage of Central American children who are reunited with family members in the United States ranges from 65 percent to 90 percent. These children remain in removal proceedings and are required to attend Immigration Court hearings and may seek relief from removal where available.  At the end of the process, Immigration Judges have the authority to order children deported if there is no relief available. Children have a greater chance at obtaining pro bono counsel and assistance during these procedures than during the expedited processes envisioned by the White House.

The United Nations High Commissioner for Refugees (UNHCR) recently released a report, Children on the Run, noting the link between the violence and insecurity permeating the Americas region and children’s reasons for leaving their homes and families to flee northward.[4] After interviewing 404 unaccompanied minors housed in US federal custody, the report found that at least 58 percent of these children had legitimate claims for international protection under the 1951 Refugee Convention to which the United States is a signatory. In addition to refugee protection, many of the children at the border may also be eligible for other forms of immigration relief, including Special Immigrant Juvenile Status (SIJS) or nonimmigrant visas for victims of crime.

There are no easy answers to this situation. However, there are principles, which have historically guided the United States in welcoming and protecting migrants and refugees from around the world, especially the most vulnerable among them — children. Basic principles of Catholic Social Teaching are consistent with our country’s commitment to human rights for all and can provide a perfect structure to guide decision-makers in fairly and humanely resolving this crisis.[5]

First, people have the right to migrate to sustain their lives and the lives of their families. At the end of World War II, Europe faced the flight of millions of people seeking safety, shelter and freedom. The United States received millions of these refugees and has continued to do so through the years. Every person has a right to receive what is necessary to live a dignified life and the United States has been a safe haven for millions of grateful migrants and refugees. Their contributions to our society are immeasurable.

Second, a country has the right to regulate its borders and control immigration. While individuals, especially children, have the right to move in search of a safe and humane life, no country is bound to accept all those who wish to resettle. In order to effectively address any pressing immigration and refugee-related issue, we must understand that our government officials have a right to enforce immigration laws in a way which is consistent with the United States Constitution, U.S. legislation and international human rights standards.

Third, a country must regulate its borders with justice and mercy. The first two principles discussed above must be understood and guided by this third principle. Decision-makers must be just and merciful in taking any decision regarding these children, realizing the absolute equality of all  women, men and children and our commitment to the common good. Ordinarily, people do not leave their homes and communities in search of adventure. They endure hardships that few in the United States can imagine and develop a strong sense of loyalty and patriotism unmatched by many native-born Americans. Our approach to the current situation must bear in mind the past contributions of millions who have been welcomed to our shores. Our just and merciful attitude towards past migration and refugee movements has enriched our nation and should guide us in our response to the current situation.

Maintaining polarized positions on either side of this debate only prolongs a fair and effective response to the needs of these children. For example, the title of a recent Congressional Hearing on this issue “An Administration Made Disaster – the South Texas Border Surge of Unaccompanied Alien Minors” only adds fuel to the growing fires of blame, fear and misinformation.[6] During the hearing itself, members of Congress from both sides posed questions with answers already in mind. As Representative John Conyers correctly noted in his introduction, a number of members had already reached their conclusions before hearing the facts. The atmosphere of the hearing did not promote true discernment of the problem. Fortunately, some of the speakers refused to speculate on broad political conclusions. Unfortunately, US politics is still conducted in the backrooms and there appears to be little space for true, open and thoughtful public discernment and discussion—something desperately needed during the current humanitarian crisis on our southern border.

Anna Marie Gallagher is a Shareholder with Maggio + Kattar, Washington, D.C. She is also a member of the Editorial Board of the Journal on Migration and Human Security, a publication of the Center for Migration Studies. She is an unconventional Catholic who returned to her faith after working with displaced persons in Guatemala during the civil war in the 1990s.  

The views expressed in this post do not necessarily reflect those of the Center for Migration Studies of New York.

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[1]  The name “Anadelcy” is not the real name of the individual.

[2] Statement by Secretary Johnson on Increased Influx of Unaccompanied Immigrant Children at the Border, June 2, 2014. http://www.dhs.gov/news/2014/06/02/statement-secretary-johnson-increased-influx-unaccompanied-immigrant-children-border

[3] Letter from the President, “Efforts to Address the Humanitarian Situation in the Rio Grande Valley Areas of Our Nation’s Southwest Border,” June 30, 2014. http://www.whitehouse.gov/the-press-office/2014/06/30/letter-president-efforts-address-humanitarian-situation-rio-grande-valle

[4] UNHCR Regional Office for the United States and the Caribbean. 2014. Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection. Washington, DC: UNHCR. http://www.refworld.org/docid/532180c24.html

[5] “Catholic Social Teaching on Immigration And The Movement Of Peoples,” US Conference of Catholic Bishops, http://www.usccb.org/issues-and-action/human-life-and-dignity/immigration/catholic-teaching-on-immigration-and-the-movement-of-peoples.cfm

[6] “House Judiciary Committee Hearing on Unaccompanied Immigrant Children.” C-SPAN video. June 25, 2014. http://www.c-span.org/video/?320151-1/unaccompanied-immigrant-children