Specialty Bar Series, 1016 COBJ, Vol. 45, No. 10 Pg. 35

AuthorBy Christine M Hernández

45 Colo.Law 35

Specialty Bar Series

Vol. 45, No. 10 [Page 35]

The Colorado Lawyer

October, 2016

By Christine M Hernández

Unaccompanied Alien Children: A Crisis in Our Immigration Courts

Unaccompanied alien children enter the United States and its immigration system alone. This article discusses who these children are and the laws designed to protect them, and encourages advocacy on their behalf.

The United States is in the midst of a humanitarian crisis. Children are entering our country and our immigration system alone. While these children are afforded certain legal measures to ensure due process, many appear before immigration courts without a legal guardian and without legal counsel This article provides an overview of the legal rights afforded to unaccompanied alien children and encourages pro bono representation of them.

How This Humanitarian Crisis Arose

An unaccompanied alien child (UAC) is (1) an alien under the age of 18 (2) who lacks lawful immigration status in the United States and (3) is without a parent or legal guardian in the United States or lacks a parent or legal guardian in the United States who is available to provide for the child’s care and physical custody.[1] Though UACs have always played a part in illegal immigration in the United States, since 2008 their numbers have been increasing, and during the summer of 2014 there was a significant surge in the number of UACs arriving from the “Northern Triangle” (El Salvador, Guatemala, and Honduras), which created a unique humanitarian crisis that continues today.2

In FY 2008, 8,041 UACs were detained at the U.S.-Mexico border; approximately 80% of them were from Mexico.[3] In the first eight-and-a-half months of FY 2014, approximately 52,000 UACs were detained at our southern border, and almost all of the children were from the Northern Triangle4 Of those 52,000 UACs, 10,600 crossed during June 2014.5 After June 2014 there was a decrease in the number of UACs entering the United States, leading many to believe that President Obama’s deterrent measures (assisting Mexico in protecting its southern border) had worked. But in March 2015 the numbers started increasing again, with 10,500 UACs entering the United States during October and November of that year.6

Why Children Leave the Northern Triangle

Researchers have consistently found a correlation between increased violence in the Northern Triangle and the increase of UACs entering the United States, and cite the increased violence as the primary motivation for these children fleeing to the United States.7 In one study of UACs from El Salvador who had been deported from Mexico, 60% listed crime, gang threats, and insecurity as the reason for fleeing their home country.8 In another study, 59% of Salvadoran boys and 61% of Salvadoran girls stated that crime, gang threats, or violence was the reason that they came to the United States.9 Young males in particular stated that they feared assault or death for not joining a gang, and young females feared being raped or kidnapped at the hands of gangs.10

Gangs engage in a variety of violent and threatening behaviors, including kidnapping, extortion, rape, and forced recruitment.11 Most UACs view making the long and dangerous journey to the United States as a last resort, after they have attempted to relocate within t heir home country only to be found again and threatened by the same gang.12 Even moving to a different country in the Northern Triangle does not prevent gangs from finding targets.13

The two gangs that play a major role in the crime and violence in the Northern Triangle region are the Mara Salvatrucha (MS-13) and the 18th Street Gang (M-18).14 These two gangs are not present to the same degree in other Central American countries, which explains the concentrated increase in UACs from the Northern Triangle region.15

Several factors have contributed to the violence in the Northern Triangle. In the 1960s, Mexican youth in the Rampart section of Los Angeles formed M-18 when they were not accepted into the existing Hispanic gangs in the area.16 MS-13 was created in Los Angeles in the 1980s by Salvadorans fleeing civil conflict in their home country.17 Though both gangs extended their operations to Central America on their own, their growth and prominence accelerated in these countries after passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).18 Before the passage of IIRIRA,19 only criminals who had been convicted of violent felonies and sentenced to five years or more of jail could be deported.20 IIRIRA redefined an aggravated felony to include any crime of theft or violence for which a one-year sentence could be imposed.[21] Other Central American countries, such as Nicaragua and Panama, did not have a large number of immigrants in the Los Angeles area; therefore, during the 1990s, non-Northern Triangle countries did not have large numbers of gang-related deportees.22

The U.S. “war on drugs” was another contributing factor to the gang violence in the Northern Triangle. Due to stricter drug penalties in the mid-1980s, the U.S. prison population surged from 330,000 inmates to 1.57 million inmates in 2012.23 This led to deportations of large numbers of U.S.-based gang members to Central America under IIRIRA in the late 1990s.24 Meanwhile, the United States was increasing counter-narcotics efforts in Colombia and Mexico, forcing the drug cartels to look toward Central America to continue their operations.25 Thus, the Northern Triangle region was ripe with recently deported MS-13 and M-18 members ready to carry out smaller jobs related to drug trafficking.26 Central American countries continue to have fewer resources and weaker institutions dedicated to fighting criminal activity, and with the widespread corruption of government officials and police officers there, gangs and drug traffickers are allowed to carry out their operations.27

UACs and their families live in the midst of this hotbed of violence and corruption. When a young man turns 13, MS-13 and M-18 start their recruitment efforts.28 Young women are targeted at any age for sexual violence and kidnapping. And families with ties to the United States are targeted for extortion.29 Many young people stop going to school after being targeted by MS-13 and M-18 because gangs wait for them on their way to and from school each day and threaten them with violence if they refuse to join.30 Local authorities either collude with gangs or are afraid to fight them, and thus do not intervene on behalf of innocent people in the Northern Triangle.31 Left with no local options, UACs and their families seek refuge in the United States,32 where they are met with the harsh realities of detention and removal proceedings.

TVPRA of 2008—Protections for UACs

The Victims of Trafficking and Violence Protection Act of 2000 (TVPA) was enacted to address human trafficking by establishing a “T Visa” for victims of severe forms of trafficking, such as sex trafficking, peonage, debt bondage, and slavery.33 The Trafficking Victims Protections Reauthorization Act of 2008 (TVPRA) was enacted in response to concerns that UACs apprehended by Customs and Border Patrol (CBP) agents were not properly screened to determine whether they were eligible for protection in the Unites States.34 The crisis created by the 2014 surge in UACs entering the United States is a result of the added protections that UACs from noncontiguous countries have—they simply cannot be summarily returned to their home country.

A UAC’s country of origin determines how he is treated at the U.S.–Mexico border. The TVPRA sets forth different procedures for CBP agents to follow depending on whether the UAC is from a contiguous country (Mexico or Canada) or a non-contiguous country (e.g., the Northern Triangle countries).35 Under the TVPRA, all UACs are required to be screened as potential victims of human trafficking.36 UACs from Mexico are screened at the border and are summarily returned to their home country37 if a CBP agent determines that the child (1) has not been a victim of a severe form of trafficking and there is no credible evidence that the child would be a victim of severe trafficking if returned; (2) has not expressed a fear of returning; and (3) makes an independent decision to withdraw his request to enter the United States.38 A child from a contiguous country that has been deemed a victim of a severe form of trafficking or expresses a fear of return must be placed in removal proceedings to determine the child’s eligibility for relief from removal.39

Under the TVPRA, the Department of Health and Human Services (HHS) is responsible for the care and custody of UACs from noncontiguous countries40 Any federal agency that comes into contact with a UAC from a non-contiguous country is required to contact HHS within 48 hours of discovering the child41 Within 72 hours of determining that there is a UAC in their custody, the federal agency must transfer the child to HHS42 UACs are required to be placed in the least restrictive setting, taking into account whether they are a danger to themselves, a danger to the community, or a flight risk43 UACs may not be placed in secure facilities unless they are dangers to themselves or have been charged with committing a criminal offense.44 UACs are held in HHS facilities until a relative or guardian is located.45

The TVPRA also charged HHS with ensuring “to the greatest extent practicable” that UACs have counsel to represent them in legal proceedings46 Despite this charge, HHS has not actually put into place a system for the appointment of counsel nor does a “public defender” system before the immigration courts exist. As a result, most UACs...

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