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No Country for Immigrant Children: From Obama's "Humanitarian Crisis" to Trump's Criminalization of Central American Unaccompanied Minors

Authors:
CIRI RB# 6 SPRING 2018
No Country for Immigrant Children: From
Obama’s “Humanitarian Crisis” to Trump’s
Criminalization of Central American
Unaccompanied Minors
Chiara Galli
University of California, Los Angeles
The California
Immigration Research
Initiative is a project
funded by the University
of California Offi ce of the
President
During the summer of 2014, tens of thousands of children migrating
alone and with their families from the Central American Northern
Triangle (El Salvador, Guatemala and Honduras) to seek refuge
in the US attracted extensive media attention when the Obama
administration declared that a “humanitarian crisis” was underway.
Obama-era responses to this inflow were thus placed under the
scrutiny of the public, and, most importantly, of a well-consolidated
network of legal advocates for children’s rights. In this milieu,
policy-making yielded mixed results. On the one hand, enforcement
against this vulnerable population was stepped-up through targeted
raids and increased funding to externalize border control to Mexico.
On the other hand, the federal government increased funding for
unaccompanied children’s legal representation1 and upheld existing
humanitarian protections in US immigration law. Because of the
latter, unaccompanied children able to reach the US and secure an
attorney had a shot at winning their humanitarian petitions to avoid
deportation to countries where their lives were in danger. Local
context shaped these outcomes as well. Children released to sponsors
based in immigrant-friendly states like California benefited from
facilitated access to free legal representation through an additional
allocation of $3 million in state funds.2
This delicate balance of repression and protection received a
veritable shock in November 2016 when Donald Trump was elected
President, abruptly altering the nature of the immigration debate
in the US. Anxiety spread quickly in already frightened immigrant
communities. Already overworked immigration attorneys struggled,
first, to anticipate what would happen and, then, to make sense of
changes as they unfolded under the Trump administration. Media
CIRI Research Brief Series
CIRI RB# 6 SPRING 2018
California Immigration
Research Initiative (CIRI)
CIRI RB# 6 SPRING 2018
coverage shifted mostly to the precarious fates of
Deferred Action for Childhood Arrival (DACA)
recipients and the Executive Order(s) banning the
entry of immigrants and refugees from certain
Muslim-majority countries. Unaccompanied
children fleeing violence in Central America thus
moved out of the crisis-era spotlight to fall largely
into the shadows. Yet, instead of ensuring the safety
of this populations’ access to legal protections,
the obscurity of the post-crisis era has rendered
the war that is being waged against this vulnerable
population invisible to all but the advocates working
tirelessly to defend children’s rights. Through
a combination of ethnographic fieldwork at a
legal aid organization in Los Angeles, interviews
with attorneys, migrant-children and their
family members, and a review of legal resources,
conducted from January 2015 to February 2018,
this brief tracks policy developments affecting
unaccompanied minors during the Obama and
Trump eras, shining light on government attempts
to reduce existing protections and advocates’ work
to counteract these efforts.
Far from constituting “loopholes,”3 as the current
Republican narrative suggests, the system of
protections for migrant-children in US immigration
law, established through years of advocacy
and litigation, is instead lacking compared to
international standards for the protection of
children’s rights. To dispel this negative rhetoric,
putting the US in global context is worthwhile.
While scholars have traced the origins of the
“best interest of the child” principle to the “child
savers” movement in the US (1820-1920),4 the US
remains the only country that never ratified the
1989 Convention on the Rights of the Child (CRC),
the instrument of international law that enshrines
this principle. Comparatively speaking, other
countries offer much greater protections to migrant-
children. For example, Spain, Italy, Bulgaria
and Hungary all grant unaccompanied minors
residence permits valid until they reach majority
of age.5 Further, Italy recently codified an age-
based non-refoulement so that no immigrant minor
may be involuntarily expelled from its territory.6 In
contrast to this children’s rights-based approach,
the US government considers this population as
immigrants before they are children. US immigration
policies selectively protect certain sub-categories
of migrant-children, 7 mainly those classified as
Unaccompanied Alien Children (UACs)8 who are the
subject of this report.
CENTRAL AMERICAN CHILD-MIGRATION &
PROTECTIONS FOR UNACCOMPANIED MINORS
IN THE US
The vast majority of Central American children
turn themselves in or are apprehended by Customs
and Border Protection (CBP) at the US-Mexico
border. If they are not accompanied by a parent
or legal guardian at that time, they are classified
as UACs and awarded significant protections
compared to children who migrate with their
parents and asylum-seeking adults. Because of the
2008 Trafficking Victims Protection Act (TVPRA),
UACs from non-contiguous countries are exempted
from credible fear screenings and automatically
placed in the custody of the Office of Refugee
Resettlement (ORR) within 72 hours.
Notably, Mexican minors, the most numerous
group of unaccompanied minors until the 2014
“crisis,” are excluded from this policy. Unless found
to be victims of trafficking or to have a credible
fear of persecution, they are denied admission
and sent back through an expedited process called
“voluntary return.”9 Despite the fact that the US
failed to ratify the CRC, it is worth noting that
excluding Mexicans from TVPRA protections
constitutes a violation of CRC article 2, which
prohibits discriminatory treatment based on
children’s country of birth.
In 2015, the average length of detention for UACs
in ORR facilities called “shelters” was 35 days.
ORR subsequently releases nearly all children (90%)
to sponsors residing in the US, who in 60% of cases
are parents and in 30% are other family members.10
ORR’s emphasis on family reunification is in
compliance with the 1997 Flores Settlement, which
introduced “best interest” standards for children’s
detention. Whether released or in prolonged ORR
custody, all unaccompanied minors are placed
CIRI RB# 6 SPRING 2018
in formal removal proceedings in immigration
court. In order to avoid deportation, they must
successfully apply for humanitarian reliefs, most
commonly through asylum and Special Immigrant
Juvenile Status (SIJS).
Two policies protect the due process rights of
Central American unaccompanied minors, the
majority of whom have legitimate asylum claims
according to UNHCR,11 enabling them to have
a better chance at securing asylum. TVPRA
established that children classified as UACs can
apply for asylum through the non-adversarial
affirmative process at the asylum office, unlike
other apprehended immigrants who apply
through an adversarial process in immigration
court. Procedural guidelines issued in 2013
further improved children’s access to asylum by
determining that the asylum office must accept the
initial determination of UAC status without making
ulterior factual inquiries into the applicants’ age or
unaccompanied status. This protects children from
aging out of eligibility when they turn 18, which
can happen due to bureaucratic lags, and when they
are reunited with their parents.
1990 Public Law No. 101-649 first introduced
the “best interest of the child” principle in US
immigration law, creating SIJS to provide a path
to legal permanent residency for undocumented
children abused, abandoned or neglected by both
parents, when return to the country of origin is
not in the child’s best interest. Initially, due to
the relative obscurity of the law, restrictiveness of
eligibility criteria, and conflicts in interpretation of
competencies between state and federal agencies,
few SIJS applications were filed.12 Today, however,
it has evolved into a significant protection,
particularly since TVPRA expanded eligibility to
include children abandoned, abused or neglected by
only one parent, which attorneys refer to as “single-
parent SIJS. Because SIJS is granted through a
combination of state-level family law and federal-
level immigration law, each state defines the
eligibility-age somewhat differently. In California,
children abandoned, abuse or neglected by one or
both parents must conclude their applications in
state-level courts by ages 18 and 21 respectively.
THE OBAMA ADMINISTRATION RESPONSE TO THE
2014 “HUMANITARIAN CRISIS”
During the 2014 surge, 51,705 newly arrived
unaccompanied minors from the Northern
Triangle placed an effective stress on ORR and the
immigration bureaucracies tasked with adjudicating
children’s claims.13 The Obama administration
declared that a “humanitarian crisis” was
underway, prompting policy responses from the
executive and legislative branches, which reflected a
combination of protective and repressive measures.
The former included increasing federal funding for
pro-bono legal representation of unaccompanied
children. 14 Further, an in-country processing
program was created to allow a small group of
children to apply for asylum in Central America
and migrate legally to the US.15
The government simultaneously introduced
repressive policies. In an attempt to stem arrivals,
funding for border enforcement in Mexico and
Guatemala was increased. Indeed, by 2015, Mexico
was already deporting more Central Americans
than the US.16 Additionally, unaccompanied
minors and family units already in the US were
assigned to so-called “rocket-dockets” in immigration
court, making their formal removal proceedings a
processing priority, a measure meant to deter future
inflows.17 This caused significant challenges to
attorneys working with children and families who
had to negotiate additional time to prepare complex
asylum claims on a case-by-case basis with each
immigration judge, as one attorney noted:
“Some judges will give me 90 days, but
others may only give 30 days. That’s
not enough time. So I say, ‘your honor,
could I have more time please? I’m from
a non-profit, we’re short-staffed, we need
preparation, documents.’ Some judges
will say, ‘no, this is an expedited removal
case so it means we’re processing
quickly.’ It all depends on how well you
get along with the judge and whether the
judge is for children or not for children.”
CIRI RB# 6 SPRING 2018
Interior enforcement was also increased through
highly visible raids in January 2016 and the summer
of 2016, which targeted children and families who
failed to win their cases. These raids prompted
outrage from advocates and spread panic among
recently arrived asylum-seekers, many of whom
were unable to successfully navigate the legal
process. Indeed, not all unaccompanied minors who
enter the US apply for relief,18 due, among other
factors, to lack of access to legal representation.
Despite recent litigation, immigrant children
currently do not have the right to guaranteed legal
representation at the expense of the government.19
Further, despite existing legal protections for
unaccompanied minors, those who apply for relief
still face numerous obstacles, and may be denied.
For asylum, challenges include difficulties satisfying
the formal refugee definition and inability to obtain
sufficiently detailed information and documentary
proof to back claims.20 For SIJS, a significant
obstacle is the length of the application process,
which leaves applicants in dangerous legal limbo,
which can last up to two or three years for children
from El Salvador, Honduras and Guatemala
because these high-demand countries exceed visa
allocations, capped at 696 per-country, per year.21
Multiple restrictive Republican-sponsored bills were
also introduced in the aftermath of the “crisis,”
reflecting a reversal in the long history of bipartisan
support for TVPRA protections.22 H.R. 5230
proposed to remove the exemption from credible
fear screenings for UACs from non-contiguous
countries to instead place them in a 7-day expedited
process in immigration court. This would have
restricted minor’s access to asylum even more than
adults’ by requiring them to successfully prepare for
removal hearings within a time frame that would
make it all but impossible to secure indispensable
legal representation. Other measures included:
modifying the UAC definition to exclude children
with a parent or extended family member residing
in the US; increasingly maximum detention times
for UACs in border holding facilities from 72 hours
to 30 days; rewriting eligibility to eliminate “single-
parent SIJS;” removing due process protections for
UACs in the asylum process (H.R. 1149, H.R. 1153,
S. 129). While none of these provisions became law,
similarly restrictive bills are being introduced under
Trump.
THE TRUMP ADMINISTRATION’S CRIMINALIZATION OF
CENTRAL AMERICANS
The Obama administration’s hybrid approach of
protection and repression has been substituted by
solely criminalizing policies under Trump. The
current administration seems increasingly intent
on disregarding the push factors (e.g. societal
violence unchecked by corrupt and weak states,
homicide rates amongst the highest in the world)23
fueling Central American migration, to promote
the false notion that arrivals are prompted by
families’ exploitation of so-called “loopholes”
in immigration law. The wide-spread use of this
expression is especially damaging. It fuels panic and
disguises legitimate legal protections for immigrant
children, backed by international and domestic
law, as illegitimate forms of favoritism. Indeed,
a recent DHS press release stated, “to secure our
borders and make America safer, Congress must act to
close these legal loopholes that have created incentives for
illegal immigrants and are being exploited by dangerous
transnational criminal organizations like MS-13.24
The Trump administration is exploiting this
criminalizing rhetoric linking Central Americans
with MS-13 to attack existing legal protections for
migrant-children. Far from being “gang members
who come to this country as wolves in sheep clothing,”25
as U.S. Attorney General Jeff Sessions’ remarks
suggest, my young respondents vehemently
condemned the gangs they migrated to flee. They
had lost loved ones at their hands and personally
paid great prices for, usually unwittingly, crossing
paths with these criminal actors who victimized
them through extortion, verbal and physical abuse,
death threats, and rape.
Beyond pure rhetoric, the Trump administration’s
criminalization of Central Americans has been
translated into new enforcement efforts. ICE
Operation Raging Bull was supposedly launched
to target gang members for deportation but it has
been criticized by advocates for relying on dubious
CIRI RB# 6 SPRING 2018
allegations to indiscriminately sweep up immigrant
teenagers.26 Indeed, the ACLU recently sued
immigration enforcement agencies in Long Island
for detaining three Salvadoran teenagers accused
of MS-13 gang membership based on insufficient
evidence.27
Parents and family members are also being targeted.
Many of these adults are vulnerable because they
are either undocumented or living in states of
“liminal legality.”28 In a reversal of Obama-era
policy, since Trump assumed office, ICE has been
using information entrusted to ORR shelters by
youths and their families to arrest and prosecute
family members who used smugglers to bring
their children to the US, in both criminal and
civil (immigration) proceedings.29 Advocates have
condemned the strategy of using “children as bait”
as “an intentional misapplication of protection laws to
damage children and families.30
Already during the Obama administration, some
undocumented family members recounted that
they were fearful of declaring their presence to
ORR. In these cases, ORR social workers reassured
them, and parents ultimately claimed custody of
their children. The Trump administration’s current
policies constitute a betrayal of migrant trust placed
in the state under the previous administration
and reflect the tenuous nature of humanitarian
protections for unaccompanied migrant-children in
the US. Indeed, attorneys have noticed a decrease
of family member’s willingness to come forward
to ORR to seek custody of their children, because
word has spread in the immigrant community that
this can be dangerous and even lead to deportation.
Attorneys now recommend that undocumented
immigrants rely on relatives and friends with
legal status to take their children out of ORR.31
My respondents reported that certain immigrants
already adopted this strategy under Obama.
Ironically, what seemed like mistrust of the state
yesterday, seems like foresight in today’s political
context.
Policies that criminalize family members ignore the
principles underlying the very institution of asylum
and international law that forbids receiving states
from penalizing individuals for entering without
authorization to seek asylum. Further, it obscures
the impossible decisions that families are forced
to make to bring their children to safety in light of
the non-existent means for safe and legal travel to
the US from Central America. Indeed, in 2017,
the Trump administration terminated the only
legal option available, Obama’s in-country asylum
processing program for Central American minors.32
The case of Carmen, the mother of a 16-year-
old targeted by gangs in her home country of
Honduras, illustrates why parents must rely on
smugglers. Carmen is undocumented and has
lived in the US for several years. Having suffered
domestic violence at the hands of an abusive
partner, who she denounced to the authorities,
she is eligible for the U-Visa for victims of crime.
However, due to the extremely lengthy adjudication
process,33 she cannot benefit from any legal means
to reunify her child in the foreseeable future.
Evidently, children whose lives are at risk in the
home country do not have the luxury of waiting in
line for the sluggish bureaucratic process to run its
course. Carmen thus explained her decision to help
her son migrate:
“When my mom and my sister called me
crying, saying that they were going to kill
my son, that same day, I made the decision
to send for him because his only salvation
was this country. I brought him and, after
a month, my niece asked me for help too
but I told her, ‘I can’t hija, I spent so much
money to bring my son, I have to save to bring
someone else.’ Then she disappeared. We don’t
know anything about her anymore, if they
killed her, if she’s alive or what they did with
her. Nothing.”
Far from being a calculating “human smuggling
facilitator,”34 Carmen’s swift decision reflects the
love of a worried mother trying to safe her son’s
life. The importance of her decision is made all
the more salient by her niece’s disappearance,
which plagued her with guilt, as she was unable
to finance her journey to safety. The criminalizing
CIRI RB# 6 SPRING 2018
policies of the Trump administration disregard the
reasons that compel parents to help their children
make the dangerous journey to the US and ignore
the well-established link between border control
and migrants’ increased need for reliance on
smugglers.35
Already under Obama, anticipating the harm that
could potentially come to families based in the
US, legal intermediaries counseled children not to
disclose details about how their trips were financed
in their asylum applications.36 Under Trump,
attorneys are becoming increasingly cautious
when deciding whether to involve undocumented
family members in children’s applications for relief,
and, when possible, try to limit their exposure to
courts and the asylum office, where they might get
arrested.37 This poses significant challenges because
adults provide crucial support for children’s cases.
Indeed, because children frequently lack access
to all the information necessary for their asylum
claims, legal intermediaries rely on family members
to help reconstruct accounts of persecution, as well
as to provide testimony.38 In fact, asylum officers
can request to interview parents, in particular for
younger children’s cases.
This hostile climate has affected my young
respondents and their family members. Children
with pending asylum or SIJS cases fret over
the potential impacts of the current climate
on the outcomes of their petitions for relief.
Undocumented parents are afraid of showing up
in immigration court on behalf of their minor
children, yet they must continue to do so because,
otherwise, their children risk receiving deportation
orders in-absentia.39 Even children whose asylum
and SIJS cases have been awarded live with the
anxiety common to mixed-status families, as their
long-desired reunification with undocumented
parents after lengthy separations seems all too
fragile in the current context, as one young
Honduran refugee recounted:
“My mom, dad, and all the people who
surround us, don’t have their papers. When
[Trump] took office I thought, my God,
what will happen to them? We heard about
the deportations of people who aren’t from
here, and I thought, God help us! The Pastor
told us that everything would be ok if we had
faith, and we prayed. But yes, I was scared,
but thank God we’re still here, fighting, day
by day.
Beyond stepped-up enforcement measures, a
more invisible war is being waged against Central
American children and their families, as restrictive
bills continue to be introduced in an attempt
to dismantle existing legal protections, such as
TPVRA. New Republican-backed bills have again
proposed reforms similar to those introduced while
Obama was President, such as removing credible
fear exemptions to place unaccompanied children
in expedited removal proceedings in court (in this
case, lasting 14 days) and increasing maximum
detention at the border to 30 days (H.R. 495).
More novel draconian proposals include: requiring
ORR to gather information on the legal status,
address and use of public benefits of sponsors
before releasing minors to them (H.R. 495, H.R.
2146); reducing international development aid
to Mexico and Northern Triangle countries in
an amount directly proportional to the number
of minors from these countries apprehended
at the US-Mexico border (H.R. 120); and
conducting a “threat assessment” of the so-called
“exploitation by transnational criminal organizations of
the unaccompanied alien children services program” to
reduce existing protections (H.R. 2495).
The Trump administration is also introducing
procedural changes through various memorandums,
which are highly technical and have garnered
little media attention. On paper, these changes
significantly curtail unaccompanied children’s
chances in the legal process but their patchwork
implementation is creating much anxiety and
uncertainty for legal brokers, making their task of
defending migrant-children ever more challenging.
The chaotic context is also instilling attorneys
with a sense of urgency, and they try to hastily file
children’s cases before existing protections unravel.
For example, a recent memorandum would allow
CIRI RB# 6 SPRING 2018
immigration judges to reassess UAC designations.
Therefore, if youths turned 18 while awaiting the
resolution of their cases, which happens frequently
due to backlogs in both immigration court and the
asylum office, or if a parent were located to provide
care, which happens in most cases, as previously
noted, this memo seems to empower immigration
judges to exclude children from TVPRA
protections.40 Similarly, the 2017 Executive Order
on “Border Security and Immigration Enforcement
Improvement Policies” also contains worrying
language on establishing a “standardized procedure
aimed at reassessing and confirming that migrant-children
continue to meet the UAC designation” when they apply
for relief, which seems to undermine access to the
affirmative asylum process. It remains unclear to
what extent these provisions will be implemented in
court by immigration judges, and whether asylum
offices nationwide have begun to re-designate
UACs who age out or reunify with parents to deny
them protection. While, at the time of writing, this
has not yet occurred in the Los Angeles asylum
office, anecdotally, it seems that it might already be
happening in other offices.
Another memo updated the Obama-era
immigration court processing priorities, eliminating
“rocket-dockets” for recently arrived Central
American unaccompanied children and families.
This provision has had mixed effects, on the one
hand, as one attorney remarked, “for the families
and kids, it’s good because now we will have more time to
prepare a case, because you know we weren’t doing them
as well as we should because we didn’t have enough time”.
On the other hand, however, the new priorities
target the most vulnerable among unaccompanied
minors, those who remain in ORR custody
because they have no family or any other potential
sponsors in the US to claim their custody. Critics
have denounced that the new policy will make it
harder for these children to access relief, effectively
turning ORR shelters into “detention mills.”41
Recent guidelines have also changed the processing
priorities at the asylum office so that cases
submitted within 21 days are adjudicated first. This
measure is nominally meant to deter asylum-seekers
from filing “fake” applications to take advantage
of the backlog, yet it pushes legitimate claimants to
the back of the line, further lengthening their legal
limbo.42
Yet another memo updated the guidelines for
the treatment of children in immigration court,
eliminating pre-existent ‘child-friendly’ practices,
such as relaxing requirements for minors to be
present in court and requiring judges to take into
account age and developmental capacity when
assessing testimony.43 Further, new guidelines state
that judges should give precedence to immigration
regulations over considering the “best interest
of the child” when adjudicating cases, further
consolidating the treatment of this population as
immigrants before children.44
Litigation on behalf of immigrant children remains
the key means of resistance in the face of hostile
government actions, allowing for some hope in an
otherwise dire scenario. Indeed, legal advocates
have recently obtained important victories. On July
5th 2017, the 9th Circuit Court of Appeals upheld a
ruling that guarantees unaccompanied minors in
ORR custody the right to a bond hearing. This is
important because, in some case, minors were being
detained for prolonged periods without judicial
review.45 Further, when the Trump-appointed
head of ORR, anti-abortion activist Scott Lloyd,
established a new policy barring unaccompanied
minors in federal custody from having abortions,
the ACLU took on, and won, the cases of two
pregnant young women, enabling them to decide
to terminate their pregnancies.46 Finally, the Center
for Human Rights and Constitutional Law, the
LA-based advocacy organization that championed
migrant-children’s rights through the landmark
Flores Settlement, continues to monitor children’s
detention conditions. After recent site visits at
the border and in family detention facilities, the
organization has taken action to denounce non-
compliance with the terms of the settlement.47
Indeed, according to my unaccompanied minor
respondents, detention conditions in border holding
facilities were already abysmal during the Obama
presidency and reflected violations, not only of the
Flores Settlement, but also of the TVPRA provisions
CIRI RB# 6 SPRING 2018
mandating that youths be kept in detention for a
maximum of 72 hours, as one young Honduran
asylum-seeker reported:
“I didn’t know if it was day or night [...]
There was one bathroom for 20 children
in the same room. There were children
as small as 2 years old with us. They
weren’t even our family and we had to
take care of them. We took off our shirts
and gave them to the children so they
could stand the cold, because they cried
so much [...] I met children who stayed
there 1, 2, 3 days. A lot had been there 8
days. One kid was there 14 days. He was
pale, tired, you could see he hadn’t been
eating well. He cried so much when he
got out […] It’s really tough to see these
things. We thought the US wasn’t going
to be like this, but then we thought that
maybe all countries are the same”
CONCLUDING REMARKS
Humanitarian protections for unaccompanied
migrant-children in the US are subject to shifting
political tides and undermined when inflows are
perceived as excessive or, even worse, framed
in the language of criminal threat. The clearly
tenuous implementation of these protections
seems to be based on a delicate and discretionary
exercise of compassion rather than on well-
established children’s rights, enshrined by law.
While scholars and advocates already condemned
the draconian enforcement measures of the Obama
administration in the aftermath of the 2014 “crisis,”
humanitarian concern and favorable public interest
remained forces powerful enough to maintain
existing protections and introduce some small
improvements, such as increased federal funding
for legal representation and an in-country asylum
adjudication program for Central American minors.
Under Trump, the sign of reforms is exclusively
draconian. Under the guise of ensuring national
security, new policies aim to undermine existing
protections for unaccompanied migrant-children,
established through years of advocacy, litigation
and policy-making. Central American children
and their families are being overtly attacked
through criminalizing discourse and enforcement
operations. Teenage asylum-seekers are conflated
with MS-13 gang members, the very actors they
migrated to escape, and targeted for deportation.
Family members are treated like criminals simply
because they financed their children’s journeys to
safety in the US. The rights of migrant-children are
also being attacked in less visible ways. Lawmakers
continue to propose bills to curtail statutory
protections that garner little media attention.
Obscure yet foreboding changes to procedural
guidelines are continuously being introduced and
could be potentially devastating for children’s access
to relief.
CIRI RB# 6 SPRING 2018
ENDNOTES
1 In 2014, Obama launched a $2 million program to fund community based organizations providing
legal services to unaccompanied minors (Muzzafar and Hipsman 2014). The Department of Health
and Human Services (HHS), which ORR falls under, provided an additional $9 million to fund legal
representation in 2014 and 2015 (AIC 2015).
2 Dobuzinskis 2014.
3 DHS 2018.
4 Heidbrink 2015 .
5 Petry et. al. 2014
6 Zampa Law n. 47 of April 7, 2017.
7 The main exception to the US approach of protecting only certain sub-categories of migrant-children
is Plyler v. Doe, which guarantees access to free public K-12 schooling to all children independently of
their migratory status.
8 The legal category UAC is defined as: “an individual with no lawful immigration status, under age
eighteen, for whom no parents or legal guardians are available in the US to provide care and physical
custody” (6 U.S.S 279(g)(2).
9 Screening practices at the border to determine trafficking and persecution risks for Mexican
unaccompanied minors have been denounced by scholars and advocates as inadequate. Indeed, most
Mexican children are summarily removed and few end up in ORR custody (Carlson and Gallagher 2015).
10 ORR 2014.
11 UNHCR 2014.
12 Heidbrink 2015.
13 CBP 2015.
14 Muzzafar and Hipsman 2014; AIC 2015.
15 The CAM program allowed parents to reunify their children who are under age 21 and find
themselves in a situation of risk in three countries of origin: Honduras, El Salvador and Guatemala.
To be eligible parents had to have legal status in the US, either legal permanent residency or temporary
permits, like DACA or TPS. The application process took place both in the US (parent component)
and in the home country (child component). Children applied through IOM offices and were then
also then interviewed by DHS officials in the home country. Children could be approved to come to
the US with two levels of protection, at the discretion of the officer: (1) as refugees, with access to all
formal resettlement support; (2) as parolees, without access to resettlement benefits and with a two-year
permit, which was meant to be renewable (see note xxxii below). Launched in December 2014, very few
applications were approved during the first year of the program’s implementation. In March 2017, out of
11,500 applications filed nationwide, 2,600 beneficiaries had been approved and had arrived in the US, out
of which 1,130 arrived with refugee status (Taylor 2017).
CIRI RB# 6 SPRING 2018
16 Rosenblum and Ball 2016.
17 Musalo and Eunice 2017.
18 It is impossible to know exactly how many unaccompanied minors actually apply for and are granted
legal status. However, if we compare CBP and USCIS data, numbers of apprehensions by far exceed
numbers of asylum and SIJS applications.
19 Dolan 2018.
20 In separate work (Galli 2017), I write in detail about youth-specific challenges in applying for asylum
for Central American children and adolescents. I also discuss how US case law that narrowly interprets
the refugee definition makes it difficult to win claims based on the persecution of non-state actors such as
gangs for all Central Americans.
21 SIJS allows children to adjust status to LPR (INA Section 245). However, to do so, a “visa number”
must be available under the Employment Based Categories, 4th preference, capped at 9,940 visas (Section
203(b) INA). In turn, for each country of origin, only 696 visas are available per year to adjust status
through SIJS. Applications of Central American children reached statutory limits in 2016, and there has
since been a significant backlog.
22 Carlson and Gallagher 2015.
23 Gagne, 2014; Hiskey et. al. 2014; UNDOC 2014.
24 DHS 2018.
25 Rosenberg 2017.
26 ICE has a website entirely dedicated to Operation Raging Bull at: www.ice.gov/features/raging-bull.
Hing 2017; Martin 2017.
27 ACLU 2017a.
28 Menjivar 2006.
29 Ordoñez 2017.
30 NIJC 2017.
31 Center for Human Rights and Constitutional Law “Defense of Immigrant Children” Webinar on
02/21/2018.
32 Trump ended the CAM program (see note xv) in two stages. First, on August 2017, he ended the
parole option, suspending new in-country applications, and revoking the possibility for parolees already
in the US to renew their temporary status (Nakamura 2017). Second, on November 2017, he eliminated
the program entirely, suspending the possibility of applying for refugee status in Central America (Reuters
2017).
33 Lakhani 2013, 2014.
CIRI RB# 6 SPRING 2018
34 Geneva Convention, article 31.
35 Gammeltoft-Hansen and Sorensen 2013.
36 Galli 2017.
37 Public Counsel and CLINIC 2017.
38 Galli 2017.
39 Public Council and CLINIC 2017.
40 Scholz n.d.
41 Shepherd 2017.
42 USCIS 2018.
43 DOJ Operating Policies and Procedures Memorandum 17-03, December 20, 2017.
44 Bronstein et. al n.d.
45 Jordan 2017
46 ACLU 2017b
47 Center for Human Rights and Constitutional Law “Defense of Immigrant Children” Webinar on
02/21/2018.
CIRI RB# 6 SPRING 2018
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Class action suit charges that efforts to detain and deport children are based on unfounded gang allegations
  • Human Center For
  • Constitutional Rights
  • Law
Center for Human Rights and Constitutional Law "Defense of Immigrant Children" Webinar on 02/21/2018. REFERENCES American Civil Liberties Union (ACLU). 2017a. "Class action suit charges that efforts to detain and deport children are based on unfounded gang allegations" ACLU. Retrieved September 3,2017 (www. aclu.org/news/aclu-challenges-trumpadministrations-jailing-immigrant-teens)
Second Legal Battle Over Abortion Rights for Immigrant Teens Takes Unexpected Turns
American Civil Liberties Union (ACLU). 2017b "Second Legal Battle Over Abortion Rights for Immigrant Teens Takes Unexpected Turns" ACLU. Retrieved December 20,2017 (www.aclu.org/blog/reproductive-freedom/ abortion/second-legal-battle-over-abortionrights-immigrant-teens-takes)
EOIR revises guidance on immigration court cases involving juveniles
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Bronstein, Sarah et. al. n.d. "EOIR revises guidance on immigration court cases involving juveniles" CLINIC. Retrieved February 25, 2018 (https://cliniclegal.org/resources/eoirrevises-guidance-immigration-court-casesinvolving-juveniles)
DHS Acting Press Secretary Statement on January Border Apprehension Numbers
Department of Homeland Security (DHS). 2018. "DHS Acting Press Secretary Statement on January Border Apprehension Numbers" DHS. Retrieved February 7, 2018 (www. dhs.gov/news/2018/02/07/dhs-actingpress-secretary-statement-january-borderapprehension-numbers)