Q & A: Minors Crossing The Border Don’t Always Get Lawyers
A sudden increase in undocumented children attempting to cross the U.S. border has drawn the attention of mainstream media, and remains controversial. Children are leaving their home countries of Honduras, Guatamala, Mexico and El Salvador to escape gang violence and drug-related killings. The Office of Refugees Resettlement anticipates that it will receive at least 60,000 referrals this year, according to NBC News.
But how easy is it to gain refugee status as an unaccompanied minor? Youth Radio reporters Isabella Ordaz and Adriana Champagne interviewed Stephen Kang, staff attorney at the ACLU’s Immigrants’ Rights Project, to learn more about the legal process for minors attempting to enter the U.S. Kang is involved in an ACLU class action lawsuit in Seattle claiming that every child under 18 should get legal representation in their immigration case.
Here’s an excerpt of their interview:
YOUTH RADIO: Why is the ACLU filing this lawsuit on behalf of unaccompanied minors?
KANG: As the law currently stands, the children have no right to appointed counsel in deportation proceedings; so that means that they have to stand up in front of immigration judges by themselves, and also face off against federal government prosecutors who are lawyers trained to know immigration law and procedure. These children are expected to defend themselves and make arguments as to why they should stay in the United States. Whenever a child appears in front of an immigration judge and gets a hearing to figure out whether they should stay in the United States, that child should also get a lawyer to help them through that process.
YOUTH RADIO: Do you work with non-Mexican children?
KANG: Most of the children who go through this process and see an immigration judge tend to be non-Mexican because the Mexicans tend to be returned very quickly.
YOUTH RADIO: Can you tell us about some of the situations children are fleeing from?
KANG: Many of the young people that are coming to the United States right now are often fleeing violence from their home countries. This is pretty serious violence, perpetrated by gang members and other people who aren’t part of the government, but who the government isn’t really able to control. Often these gang members are targeting young people specifically, so that’s why you see a lot of younger people coming to the United States.
One of the ACLU’s lead plaintiffs is a 10-year-old boy who watched his father get murdered in front of him. His father was a former gang member, who left the gang and eventually became a pastor and a minister, and ran a ministry for former gang members… Eventually, the gangs started targeting him and his siblings, and it got to the point that they felt that they needed to leave El Salvador and come to the United States. The ACLU believes that if this group of children has legal representation in their immigration proceedings, they’ll have a fair shot at to prove whether they deserve asylum in the United States. These are the types of children that we are seeing try to come to the United States right now.
YOUTH RADIO: What happens to children crossing directly over the border from Mexico?
KANG: Once children from Mexico present themselves at the border, or are found near the border, they are supposed to [be screened] by personnel from the Department of Homeland Security for three different criteria. The first is to figure out whether they have been the victim of trafficking. The second is to figure out whether they have a fear of returning to their home country, which means to see if they have some kind of a valid asylum claim or asylum-type claim. The third is to figure out whether they think the child can voluntarily withdraw their application for admission, which means to see if the child has the capacity or ability to say ‘I want to go back to my home country and not come to the United States’. They are supposed to be screened for these three things.
But if the child is maybe a victim of trafficking, or if the child has a fear of returning, or if the child doesn’t have capacity to withdraw their application for admission, the Department of Homeland security is supposed to refer them to the immigration court system, where they’re supposed to see a judge and have a hearing to figure out whether they should stay in the United States.
YOUTH RADIO: At what point are non-Mexican/ non-Canadian children meant to be referred to the Office of Refugee Resettlement (ORR)? When does the immigration process begin?
KANG: You know, to be honest I’m not exactly sure when they’re required to be referred to the immigration judge, but what typically happens is that at some point while [the children are] in either the custody of the Department of Homeland Security like immigration enforcement, either they’re in immigration custody or they’re in ORR custody, they’ll get issued what’s called an NPA, which means Notice To Appear. It’s a document that charges the child. It states the government’s reasons why they think the child should be deported. And that is what starts the process of getting in front of an immigration judge.