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The Plight of Unaccompanied Immigrant Children: A Mexican Attorney's Perspective

By Maria del Pilar Orozco – October 7, 2013

 

Immigration presents a significant challenge for many countries, including the United States. Numbers have grown and will continue to grow exponentially because people are coming to the United States not only from Latin America but also from around the globe. They come by foot, train, or boat. They travel in the worst conditions for days, weeks, and even months to arrive at their final destination. What many people may not know is that a significant percentage of immigrants coming to the United States each year are unaccompanied minors.


While working during the summer as an international clerk for Baker & McKenzie in the Chicago office, a group of the firm’s summer interns and I were invited for a day of service at the International Children’s Reception Center of Heartland Alliance. The day was hosted by the center, the National Immigrant Justice Center (NIJC) of Heartland Alliance, and the Young Center for Immigrant Children’s Rights at the University of Chicago Law School. Each of these entities plays a different role with respect to unaccompanied immigrant children detained inside the United States. The International Children’s Reception Center provides care and custody until the children can be released to family or sponsors. NIJC provides “Know Your Rights” presentations and legal screenings and, in some cases, undertakes the representation of individual children. The Young Center for Immigrant Children’s Rights serves as child advocate—best-interests guardian ad litem—advocating for the best interests, safety, and well-being of individual children.


The International Children’s Reception Center houses children from all over the world who have been apprehended by immigration officials and then placed in facilities such as this one for a short or sometimes extended period of time while family or sponsors are located.


The Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, by the Office of the UN High Commissioner for Refugees (Geneva, Feb. 1997), define an unaccompanied child as a person who is under the age of 18, unless, under the law applicable to the child, majority is attained earlier, and who is “separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so.” These guidelines encompass the general measures to be taken by countries regarding protection for unaccompanied children to ensure that certain standards are met and their legal rights are respected throughout the process of either returning to their home country or as candidates for asylum in the receiving country. The guidelines state that as soon as an unaccompanied minor is identified and it has already been determined that the child is seeking asylum, “every effort should be made to process the examination of his/her claim as expeditiously and as child-appropriate as possible.”


The Visit
We spent a day at the International Children’s Reception Center of Heartland Alliance. The Young Center and NIJC provided an abbreviated training on unaccompanied children, legal relief, and international protections. While they are at the detention facility, the children receive a “Know Your Rights” presentation and a legal screening by an attorney or paralegal with NIJC. NIJC provides free legal advice and representation to unaccompanied immigrant children, immigrant survivors of domestic violence and violent crimes, youth applying for deferred action, and asylum seekers.


When we arrived at the immigration detention center, I was amazed by several things. First, the people who care for these children do it with an absolute happiness and joy. They are there to give these children, who have just come from a horrible journey, a warm meal and a comfortable bed. The facility is in extremely good condition, something that may not seem so important, but it is important compared with these kinds of facilities in other countries. For example, kids have their immediate needs met, such as housing, food, and clean clothes. The children receive immediate medical and dental care. If they have family, they have a right to communicate with them once a week. They have physical and recreational activities, and they are able to enjoy some time outdoors too. The children who are detained at the border or who are detained after they are already inside the United States are able to spend some months with a good meal, a community of people who care for them, and a group of kids who are on the same quest as they are. Everyone in our group was surprised at and at times saddened by how well the kids behaved; their journey and experiences have made them become tougher and very mature for their age.


“Know Your Rights”
During the first weeks of their arrival at the detention facility, the children are informed of their rights as unaccompanied minors through “Know your Rights” presentations provided by NIJC. This lecture is intended to give them general information about why they are at the center, what their rights are at the center, when they will be released, what an attorney is and how an attorney is going to help them, how can they stay legally in the United States, and other important things to remember.


While on our visit, we were able to listen to one of the lectures given by a paralegal for NIJC. A group of about seven teenagers walked in the room and stared with big eyes at the four lawyers sitting next to them. I imagine they were wondering what this was all about, but they just looked at us and smiled.


The NIJC paralegal spoke in Spanish in order for the kids to understand. She started out by stating that they had been detained by border patrol and that they were here on a temporary basis to try to locate their families and wait for a court date for an immigration judge to decide their future. The boys just nodded, as if they already knew what the next step would be. The paralegal then made an interesting analogy likening the court hearing to a soccer game. She explained that, just as in a soccer match where you have a referee, here there will be a judge who verifies that the law is followed. She also mentioned how there are two teams that are playing—in this case, the child and the United States government. She explained how both teams have to show up to the match in order to win and not forfeit. She also let them know they want to help them. But, in order for NIJC or the organization that will represent them to be successful, the kids have to go to the game. They have to appear at all of the hearings, and they have to be on time or the judge will order their deportation. They are also made aware of the fact that they are not allowed to work, they have a right to attend school, and they should stay out of trouble.


She handed each of them a Know Your Rights handbook in Spanish that includes all the information related to their status and explains the different types of protection they can get from the government, such as asylum, Special Immigrant Juvenile status, a U visa, or a T visa, or apply for voluntary departure. It explains what an attorney is and how an attorney will help them during their case before the immigration court.


According to NIJC’s Know Your Rights handbook, unaccompanied minors may apply for asylum if they are afraid to go home for any of the following reasons:


  • fear of being harmed
  • their family’s political activities, actions, or belief; religion; race or language
  • belonging to a certain group in their community
  • their sexual orientation or gender
  • their refusal to be a soldier or join a gang

  • Organizations like NIJC fight for their rights and look for legal relief for these kids in order for them to be able to stay safely in the United States.


    The Interview
    After the “Know Your Rights” lecture, we had lunch with some of the children. I sat with two youths from India and two from Guatemala. One of them asked me if I was currently legally in the country, because I was speaking Spanish with them. It hurt me to say it, but I answered yes. I have a work visa. That really made me think, what do I have that they don’t? Why has it been so hard for them? What can I do to help?


    I’m a fluent Spanish and English speaker, so I assisted as a translator while two of my colleagues interviewed one of the children to assess whether he qualified for any kind of relief. This way we got to see what being an NIJC volunteer is all about and how you have to be sensitive and put yourself in the children’s position to really be able to help them.


    The interviews are not easy. Some of the questions are pretty general: How old are you? What is your mother’s name? But some can be pretty tough and personal: Have you been persecuted because of your sexual orientation? Has anyone ever forced you to do something you didn’t want to do that made you feel uncomfortable? Usually, children are afraid or they are trained not to tell the truth for the fear that they will be deported. What NIJC has to make sure of and be very careful of is letting them know that NIJC is there to help. NIJC lets the children know that any information they share is confidential and will not be disclosed to the government or other parties and that their experiences back home may actually make them candidates for asylum.


    Best Interests of the Child
    Sometimes the children want to go back home or want to stay in the United States but have no family to take care of them, or if they go back home, they will return to a life where they are abused, mistreated, persecuted, or neglected. The child advocate’s role is to figure out what the child wants (not what the child’s sponsor wants) and to represent the child’s best interests. International human rights laws, such as the Declaration of the Rights of the Child, state that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” The UN Convention on the Rights of the Child (1989) states, in article 3, that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”


    The Young Center for Immigrant Children’s Rights serves as child advocate pursuant to the Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA). The role of the child advocate is to identify and represent the best interests of the child. The TVPRA child advocates meet with the children, learn their stories, and advocate on behalf of individual children. The child advocates prepare detailed best-interests reports incorporating international law and the child-protection law of the state in which the child is detained. The best-interests reports are submitted to decision makers, including detention facilities, immigration authorities, asylum officers, and immigration judges. The attorney’s role is to represent the child’s stated interests, while the child advocate identifies and represents the child’s best interests. In most cases, the child’s best interests are identical to the child’s stated interests. There are cases, for example, in which the child wants to remain in the United States, and it is in his or her best interests to remain in the country, but the child’s case does not fall neatly within a category of relief. In such a case, the child advocate’s role is to gather factual information to establish why it is not in the child’s best interests to return to his or her country of origin and to present that information to the decision maker. In some cases, the decision maker—immigration official, immigration judge—may have the authority to exercise discretion and, at the very least, avoid the deportation of the child.


    Being a corporate lawyer, you don’t usually get involved with these kinds of matters every day. By participating as a volunteer with organizations such as NIJC or as a child advocate with the Young Center for Immigrant Children’s Rights, you get a feel for what being a socially responsible lawyer is. We were prepared in law school to make sure the law is enforced; therefore, we have a duty and a moral obligation to apply such knowledge to help others as best as we can.


    Keywords: litigation, children’s rights, asylum, best interests, child advocate, deportation


    Maria del Pilar Orozco is a junior associate in Baker & McKenzie's Monterrey, Mexico, office.


     
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