Understanding the Humanitarian Challenge at the Border
–by Brandon Gillin
The recent surge in apprehensions of unaccompanied minors from the “Northern Triangle” of Central America at the southern U.S. border is something that immigration lawyers and advocates across the country have been following in recent weeks. Although the situation does not resonate in the Pacific Northwest as much as it does in southern States such as Arizona and Texas, the overarching implications for federal immigration reform are felt among everyone.
In following this national story, it has been difficult to ignore the misinformation being spread in the media and among politicians. Much of the misinformation is politically charged in an effort to justify the sentiments that comprehensive immigration reform is not needed and that any humanitarian programs be scaled back.
Most notably, Marco Rubio (R—Fla.) linked a humanitarian program called “Consideration of Deferred Action for Childhood Arrivals” (DACA) to the influx of unaccompanied minors at the border. DACA, which was implemented by the Obama Administration in August 2012, allows certain individuals to obtain work authorization and a kind of agreement from the Department of Homeland Security (DHS) that it would defer removal proceedings against those who qualify. To be eligible for DACA, an individual must show to the satisfaction of DHS that s/he: (1) was under the age of 31 as of June 15, 2012; (2) came to the U.S. before reaching age 16; (3) has continuously resided in the U.S. since June 15, 2007 to the present; (4) was physically present in the U.S. on June 15, 2012; (5) had no lawful immigration status on June 15, 2012; (6) is currently in school, have graduated or obtained a certificate of completion from high school, have obtained a GED certificate, or is an honorably discharged veteran of the U.S. Armed Forces or Coast Guard; and (7) has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Rubio apparently reasons that because DACA grants relief to certain young individuals (albeit in a very limited form), children from across the world are itching to jump on the bandwagon. The problem with that contention is that it is not supported by the evidence. Most obviously is that the United States is not the only country where these unaccompanied minors are showing up; growing numbers are seeking refuge in Mexico, Panama, Nicaragua, Costa Rica, and Belize. Also, children from the Northern Triangle most often cite gang or cartel violence as a prime motivation for migrating, as poverty and family reunification as other reasons. To cite DACA as a reason is misplaced since the children would not even qualify for the program.
Although DACA is not available for the apprehended children, each child has the opportunity to appear before an immigration judge in immigration court after being issued a Notice to Appear in removal proceedings. Various forms of relief are potentially available if the respondent can make the proper showing. Among the forms of relief are asylum (must demonstrate a well-founded fear of persecution based one of the enumerated grounds), special immigrant juvenile status (must show abuse, neglect, or abandonment by one or both parents and have certain dependency orders issued by a juvenile court), a U visa (available for victims of certain crimes), and a T visa (available to victims of severe trafficking). No legal counsel is guaranteed for individuals in immigration court as it is in our criminal courts, so the chances of these children being granted relief is slim even if they may otherwise qualify. For that reason, the Seattle-based Northwest Immigrant Rights Project, along with a coalition of partners has filed a class action lawsuit in the U.S. Federal District Court for the Western District of Washington against the federal government challenging its failure to provide legal representation to these thousands of children facing removal proceedings in immigration court.
Brandon Gillin is an immigration lawyer with Genesis Law Firm, PLLC in Everett, Washington.