THE BLOG
07/19/2014 12:26 pm ET Updated Sep 18, 2014

Why the Central American Children Migrants Need Full Adjudication of Their Protection Claims

As Congress and the Administration consider proposals to eviscerate the heretofore obscure (now demonized) Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), it makes sense to review the case for change and to query whether the proposed cure might not do more harm than good. In fact, repeal of the TVPRA would do little to address the factors driving child migration from Honduras, Guatemala and El Salvador, and would prevent these children from receiving a full, fair and independent determination of whether they would likely be killed, tortured or trafficked if returned home.

To craft the appropriate set of short- and long-term responses to this humanitarian disaster requires an accurate analysis of its causes. A series of recent reports have identified multiple causes, including the threat of gang, cartel and domestic violence; official corruption in sending states; criminal impunity; poverty and lack of opportunity; and the strong desire for family unity. These reports -- from credible sources like the United Nations High Commissioner for Refugees, Washington Office for Latin America, U.S. Conference of Catholic Bishops, Kids in Need of Defense, Women's Refugee Commission, and the American Immigration Council -- are based on interviews with hundreds of detained and deported children (and family members), analysis of their legal claims, and fact-finding missions. Their findings have been bolstered by horrific rates of violent crime in migrant sending communities, a steady flow of Central American press reports on killings of children and deported migrants, and briefings by community-based organizations and migrant shelters in countries of origin and transit. A recent investigative article published by the Observatorio de Legislación y Politica Migratoria points out that many Central American children have reached the age of greatest vulnerability to gang recruitment and violence, and have parents that have become well-enough established in the United States to be able to afford exorbitant smuggler fees.

Two weeks ago, the El Paso Intelligence Center (EPIC) ventured a different explanation, concluding that the increase in child migration has "most likely been driven" by what it characterizes as "traditional migration factors exacerbated by misperceptions of recent U.S. immigration policies," which (in turn) have been "likely fueled" by smugglers and the Central American media. It may be true that misperceptions about U.S. law and policy have contributed, in part, to the decision of parents and caregivers to arrange for their children to flee violence and privation. Yet EPIC's influential (leaked) report seems to overstate the magnet effect and extent of these misperceptions.

Its findings are largely based on Border Patrol "interviews" of necessarily fearful, unaccompanied children and families in South Texas in May of this year. Because of their power over migrants, disposition, and (lack of) training, the Border Patrol may be among the worst agencies to interview migrant children and assess their motivations. The report also cites United Nations statistics pointing to a decrease in homicide rates in Honduras, El Salvador and Guatemala as evidence that violence is "likely not the primary factor" driving the exodus. Yet it is not obvious that slightly lower, but extremely high rates of violent crime in sending communities, mean that violence against young people has diminished. The report credits falling homicide rates in El Salvador, for example, to a truce between leading gangs, not to flagging victimization of non-gang members. Nor does the narrative of children drawn by the mirage of US legal status account for the spike in asylum claims in Mexico and other states or explain the high levels of forced migration within sending states. The report also references the "likely" role of smugglers in spreading misinformation about U.S. immigration developments, as if members of these communities were not intimately familiar with the lies and abuses of smugglers. It also faults the coverage of "Central American media outlets," but concedes that it lacks detailed reporting "on the extent" that these outlets "have reportedly misrepresented U.S. immigration policies." Moreover, its analysis ignores the fact that it is U.S. parents, not Central American caregivers or the children themselves, who decide whether many (if not most) children will migrate.

The TVPRA has been widely characterized as an exercise in unintended consequences in the form of a wide enforcement loophole. In fact, it is as much an enforcement measure, as a humanitarian tool. From a humanitarian perspective, it seeks to ensure that migrant children at risk of persecution or trafficking are not returned to perilous situations and that those not at risk are safely repatriated. It also lodges initial jurisdiction for adjudication of the political asylum claims of unaccompanied children with US Citizenship and Immigration Services (USCIS) asylum officers.

From an enforcement perspective, the TVPRA divides unaccompanied children into two groups, those from non-contiguous states and those from Mexico and Canada. To the latter group, it offers a "special process" consisting of Customs and Border Protection (CBP) screening and rapid removal of children (technically via withdrawal of their applications for admission) who are deemed not to have been victims of trafficking, who do not credibly fear trafficking or persecution if returned, and who can independently "withdraw" their applications. Many in Congress support subjecting all migrant children to this procedure, which precludes the vast majority from accessing a lawyer or having their case reviewed by an immigration judge. Several observers, including Appleseed and UNHCR, have found that CBP screening does not sufficiently assess risk of persecution or trafficking, or the ability of children to voluntarily withdraw their claims. In addition, CBP arrests of Mexican children rose steadily between FY 2011 to FY 2014, undermining the claim that this process would reverse the large-scale migration of Central American children to the United States.

TVPRA opponents seem to labor under the misconception that the law provides children from non-contiguous states with an easy path to status. Instead, these children are placed in normal removal proceedings. During the pendency of their proceedings, they remain in the care and custody of the Department of Health and Human Service's Office of Refugee Resettlement, which is tasked with placing them in the "least restrictive setting," including with parents and other family members. This rule is consistent with the well-established legal principle that prioritizes the "best interests" of the child, taking into account risk of flight and danger. The law allows for placement in secure settings based on a determination that a child "poses a danger to self or others or has been charged with having committed a criminal offense."

In an earlier blog, I described three needs that should be paramount in crafting a coordinated, multi-pronged strategy to address this humanitarian crisis. Of greatest long-term importance, the United States should prioritize its engagement with sending states to address the violence, corruption and poverty driving child migration. The Obama administration has announced a series of modest development, reintegration, "citizen security" and law enforcement initiatives in Central America. It needs to broaden and deepen its commitment to these immense challenges, and to do a far better job of explaining their size and dimensions to the public and of highlighting successful, U.S.-funded development and rule-of-law initiatives. It should also continue to support media and public education initiatives in Central America on the dangers of migration and the limited opportunities for children to gain legal status in the United States.

The Administration should also enforce the law, which will require greater resources. In recent years, the default solution to every migration challenge has been increased funding for the Border Patrol and the detention system. Yet the most obvious, efficient, rights-respecting way to address this crisis would be to dramatically increase funding to the immigration adjudication system, particularly the Department of Justice's immigration court system. Funding for CBP and Immigration and Customs Enforcement (ICE) equals $18 billion per year, but the US enforcement system feeds into an immigration court system that receives one-sixtieth of that amount (roughly $300 million per year). As a result, more than 375,000 cases are pending in U.S. immigration courts, with fewer than 250 judges to adjudicate them and to accommodate incoming cases. Yet the Administration's supplemental appropriation request to address this crisis includes only $45.4 million for 40 "immigration judge teams," a wholly inadequate amount and number. In addition, the Administration seeks only $15 million for legal representation, although legal counsel has been found (along with family ties) to be one of the surest ways to ensure appearances at legal proceedings.

A substantial and permanent increase in immigration judges and clerks, along with legal counsel, would minimize the risk of returning children to their deaths, lead to the timely removal of those without claims to remain, and expedite consideration of cases that have been pending (on average) a farcical 587 days at great cost to the government.

Finally, the United States needs to create legal vehicles that would allow imperiled children with close family members (including parents) in the United States to enter the country legally. Far too little attention has been paid to the absence of any dedicated, legal vehicle to screen and admit persons under U.S. law who are at extreme risk, short of the formal refugee admissions program. Senator McCain and Senator Flake have proposed admitting 5,000 refugees each from Honduras, Guatemala and El Salvador. This idea deserves careful consideration, although refugee processing should not be denied to those forced to flee their nations. Congress should also create a temporary "protection" or "humanitarian" visa for persons in extreme danger, particularly those with strong ties to the United States. This visa should complement, not serve as a substitute for a robust refugee protection system. The presence of legal avenues to admission for even limited numbers of truly desperate children would save lives and could tip the balance for many families now facing the Hobson's choice of whether to risk their children's lives by migration or by staying at home.

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