A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System
On February 27, 2014, the Migration Policy Institute hosted a panel discussion entitled, “A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System.” The panel was moderated by Kathleen Newland, the co-founder of the Migration Policy Institute and the Director of MPI’s program on Migrants, Migration and Development. The panelists were Elizabeth Dallam, the National Legal Services Director of Kids in Need of Defense (KIND), Lisa Frydman, the Associate Director and Managing Attorney at the Center for Gender and Refugee Studies at the University of California Hastings College of Law, Karen Musalo, the Director of the Center for Gender and Refugee Studies, and Wendy Young, the President of KIND. The panel launched the report, “A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System” published by KIND and the Center for Gender and Refugee Studies.” The full report can be viewed here and the panel discussion can be viewed here.
The discussion focused on the specific findings of the report which addressed the current crisis of children who cross the U.S./Mexican border and their ability, or mostly inability, to successfully navigate the U.S. immigration system. Child migrants continue to arrive at the U.S. border, oftentimes unaccompanied and without any family members, with increasing numbers each year. It is estimated that 74,000 children will arrive at the border in FY 2014.The majority of these children are from El Salvador, Guatemala and Honduras. Oftentimes the children are fleeing poverty, gang violence, drug violence, state violence, and abusive family situations or are trying to reunite with their families already in the U.S.
According to the panelists, the main areas of concern for the child migrants were related to the gaps in protection afforded to these children. For example, children, like adults, caught on the border are not appointed counsel and must rely on pro bono counsel or representing themselves pro se, the children are not appointed child advocates, there is a lack of focus on the ‘best interest of the child principle’ and the current practices do not address the root cause of migration for the children.
Specifically the report found that there is a lack of child sensitivity in adjudication procedures. For example, border patrol agents lack appropriate measures to screen children at the border to identify the need for relief due to the fact that children may process or express their needs and experiences differently than adults; they also might react to border patrol agents differently. There is a lack of binding guidance on child sensitive approaches on adjudicating asylum, withholding and Convention Against Torture (CAT) cases. Some Immigration Judges have considered the age, physical and emotional development and maturity of the child into consideration when adjudicating these types of cases, while other IJs do not take it into account. This has resulted in inconsistent decision making. The question of “Should persecution of a child be a lower standard than for an adult?” also came up throughout the discussion. While some courts have juvenile dockets, most children are in formal court proceedings and oftentimes have to withstand intensive and insensitive questioning by ICE and the IJ. The panel suggested having a more informal setting for the juvenile docket and a restrained and appropriate line of questioning, established before the hearing. The report encouraged for there to be more training for IJs, ICE and the Board of Immigration Appeals.
The panelists additionally discussed other available forms of relief for undocumented children such as U-visas, T-visas, Special Immigrant Juvenile Status (SIJS), and Prosecutorial Discretion. The panel and the report both suggested that it is inappropriate for USCIS to ask for state court records when adjudicating SIJS cases and that USCIS should employ more relaxed methods when establishing the age of a child, especially if their birth certificate has been destroyed in transit or is otherwise unavailable. The report further suggested the need for a new form of relief for children whose best interest is not in returning to their home country and they are not eligible for other forms of relief.
The panel concluded with a brief discussion about the need to address the root causes that cause children to leave in the first place. Violence, abuse, poverty and lack of opportunities in the home countries contribute to out-migration trends and it is necessary for a regional response to a regional problem. If the root cause of out-migration can be addressed there may be a reduction in the numbers of children arriving at the U.S. border.