Monday, August 25, 2014

Child Migrants in the Midst of Our Border Crisis


by Caroline Bettinger-Lopez

 Some of the summer’s biggest news headlines have focused on the surge of children from Guatemala, El Salvador, and Honduras who, fleeing widespread violence and extreme poverty, have crossed the U.S.-Mexico border to seek refuge in the United States. According to the New York Times, “more than 63,000 children have been caught crossing the United States border alone since October — double last year’s number. President Obama has called the surge an ‘urgent humanitarian situation,’ and lawmakers have called for hearings on the crisis.” The border crisis has sparked a highly politicized debate, with compromise solutions shifting steadily to the right. The most recent bipartisan proposal would appropriate only a fraction of the money that advocates say is necessary to adequately respond to the crisis and, in many cases, require detention of minors (in violation of the 1997 Flores v. Reno settlement requiring the release of migrant children, when possible, to relatives or foster care) and result in rapid deportations without due process. It would also extend the Trafficking Victims Protection Reauthorization Act (TVPRA) to permit Customs and Border Patrol (CBP) agents to return unaccompanied minors to Central America after a very brief screening interview, without ever being placed in immigration proceedings. (This TVPRA provision currently applies only to countries contiguous to the U.S., i.e. Mexico and Canada).  

 Recent proposals, domestic and international litigation, and scholarship have called upon the federal government to protect the constitutional due process rights and international human rights of unaccompanied minors by, inter alia, providing free legal counsel for unaccompanied minors in immigration proceedings. These documents recount the standard law and policy arguments in favor of appointing free legal counsel to unaccompanied minors: the vulnerability of unaccompanied minors as they navigate an unfamiliar and arduous legal process; the complexity of immigration law; and the significantly increased likelihood for immigrants, especially minors, with lawyers to win their cases over those who represent themselves. Previous constitutional challenges along these lines have failed, and the closest the federal government has come to fulfilling the right to free legal counsel for unaccompanied minors is a contract with the Vera Institute of Justice to manage the Unaccompanied Children Program, which provides legal assistance to unaccompanied minors and has increased the percentage of children who receive free legal assistance in immigration proceedings from ten percent in 2003 to fifty percent in 2011.[1]

 As Professor Shani King has described, three constellations of international human rights law—children’s rights, immigrants’ rights, and the right to civil counsel—support the idea of free legal representation for unaccompanied minors. Professor King carefully details the legal regimes in many other countries that provide free representation to unaccompanied minors. The U.S. should follow suit, as this is a far better use of taxpayers’ dollars than the incarceration, removal, and rights rollbacks that form the core of most current legislative proposals. In fact, a recent study found that the cost savings to the government from not detaining immigrants in removal proceedings would essentially cover the cost of providing free legal representation.

Recent international human rights advocacy takes the campaign on behalf of Central American and Mexican child migrants in the U.S. a step further. Earlier this month, immigrants’ rights and human rights organizations from Chicago submitted a precautionary measures petition asking the Inter-American Commission for Human Rights (IACHR) to direct the U.S. government to stop the fast-track deportations of Central American or Mexican children who flee to the U.S. to escape gang recruitment, kidnapping, torture, rape, death threats, and other extreme violence in their home countries. The right to free legal representation is a core component of the petitioners’ requests, which focus on the rights to life, liberty and security of person; the rights of children to special protection; and the right to seek and receive asylum in a foreign territory. Several groups have requested hearings at the IACHR to address the issue of child migrants and the U.S. border crisis, and the IACHR is expected to take this up during a site visit to the U.S.-Mexico border in the fall.

A longer version of this blog post will soon be published as a Jotwell review of Shani King's Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors, 50 Harv. J. Legis. 331 (Summer 2013). 

[1] For detailed data on unaccompanied children in immigration court, see Transactional Records Access Clearinghouse (TRAC) at Syracuse University, New Data on Unaccompanied Children in Immigration Court, July 15, 2014, available here.

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