Court: The next step for Central American minors living illegally in the US

May 7, 2015

National Catholic Reporter

If Joel gets sent back to El Salvador, he knows he'll be killed.

The 11-year-old refused to pay off gang members collecting money outside his school and received beatings for his lack of cooperation. After his uncle tried to defend him, the violence only got worse. Joel's mother, who came to the United States when Joel was 2, decided her son should risk the trip north. For now, he is safe, living with his mother, stepfather and three siblings. But Joel's future is uncertain.

Joel, who asked that his last name not be used, was one of 16,404 unaccompanied minors from El Salvador apprehended by the U.S. Border Patrol in 2014. He was part of what has become known as “the surge” in border crossings by young people from Central America in recent years. In 2011, 1,394 children attempted the journey from El Salvador. In 2013, that number had grown to nearly 6,000 before almost tripling for the next year. A similar pattern is true for Guatemala and Honduras. Across all three Central American countries in 2014, 51,705 children were caught crossing the border alone.

Increasingly, many of these children, like Joel, cite gang violence as their reason for coming north. The vast majority have been released to family members or other sponsors while they wait to find out whether the U.S. government will let them stay. Others have entered the foster care system. Nearly all of them, though, are just waiting.

“What was a humanitarian crisis at our border last summer is now a due process crisis in our courts,” said Megan McKenna, communications director for Kids in Needs of Defense, or KIND. “These kids are no longer in the national news like they were last summer, but they're still here.”

In 2015, the number of unaccompanied minors crossing the border has dropped dramatically from its height the year before. According to Border Patrol statistics, the number of children caught traveling alone from Oct. 1 to March 31 was 45 percent less than the same time period the year before.

In June 2014, Secretary of Homeland Security Jeh Johnson wrote an open letter in Spanish discouraging families from making the trip north and warning parents of how dangerous it would be to send their children alone. That was followed up by the Dangers Awareness Campaign in July, marketed throughout Central America. But for the tens of thousands of children already here, the journey is far from over.

KIND opened in 2009 to address the children navigating the U.S. immigration system alone. Unlike adults, children have more of a protected status when it comes to deportation proceedings, and U.S. law requires a hearing for every child who arrives from countries other than Canada and Mexico. KIND mentors pro bono attorneys at law schools, corporations and law firms, helping them represent children fighting deportation. The organization saw the early evidence of the surge in late 2011 and has been scrambling to grow its capacity since.

Only 30 percent of unaccompanied minors have representation in immigration court. According to data from the Transactional Records Access Clearinghouse at Syracuse University, a slightly higher percentage of children who came from Central America during the surge – 41 percent – had an attorney on their side. And it makes a difference.

TRAC looked at case outcomes from 2012, 2013 and 2014. When a child had legal representation, 75 percent of cases closed in favor of that child. Without an attorney, just 15 percent of kids were allowed to stay in the United States.

The Chelsea Collaborative is a neighborhood organization northeast of Boston, based near the town Joel now calls home. It helped him find an attorney to take on his case and has provided direct services to more than 200 other unaccompanied minors released to families in the Chelsea area.

Alexandra Early is an organizer with the Chelsea Collaborative and has focused on the legal battles of immigrants coming through the center's doors. While the collaborative has been able to connect many children and families with attorneys, Early knows many others have fallen through the cracks of the immigration system. Last summer and fall, people came into the Chelsea Collaborative every day looking for help translating court paperwork sent to them in English. She said the system seems to be set up so the most likely outcome is a missed hearing that leads to deportation rather than a chance to prove the need for asylum.

Joel will be one of the children going through the court process with an attorney. He made it to the Chelsea Collaborative with a compelling enough story to earn him pro bono representation. After a year in the United States, the 11-year-old already feels at home in East Boston, though his face turns serious when he mentions his fears for his relatives in El Salvador. This gentle, kind boy agreed to tell his story while struggling through a cold, asking perdón with an embarrassed smile after every cough.

His troubles in El Salvador started at the beginning of the fifth grade. When he arrived for class, there were other children waiting at the door of his school, demanding money. He didn't give it to them, so they sent older peers to collect. Joel said he couldn't defend himself against the teenagers, and they hit him, cutting him above his eyebrow, punching him in the head. They told him the Christian God he prayed to didn't exist and stole his shoes. Finally, his mother said enough. She collected money to pay for his trip through Guatemala and then Mexico before reaching the United States.

Joel said it took eight days to arrive at the U.S. border in May 2014. His uncle accompanied him on the trip before leaving him to cross the Rio Grande with other children so they could seek out a Border Patrol agent and get help. Joel said he felt relatively safe with his uncle, but when they separated, he turned to prayer.

“Jesus, please give me the strength to cross here,” Joel remembers praying. “And I crossed, thank God.”

He and the rest of his small group found a Border Patrol agent relatively quickly, then spent several days at a detention center with other children as well as adults before being taken into custody exclusively for unaccompanied minors. He remembers hordes of people in the first building, sitting, standing, lying down. He was transferred multiple times over the next couple of weeks before finally being able to call his mother and get on a plane to Boston – his first experience with air travel.

“When I saw my mom, I gave her a big hug and a big kiss,” Joel said, smiling. “My mom and I were both crying. We were so happy.”

Joel later found out his uncle didn't make it beyond the border and was deported back to El Salvador, where he has remained in hiding. The gang members have been out for his life since he stood up for his nephew, and Joel is sure they'll kill him too if he gets sent back. He tries not to think about that, however, enjoying the time he has with his mother and other relatives. He said he hopes to stay in the United States indefinitely but earn the freedom to return to El Salvador to visit his family.

Joel has assumed the role of big brother to three other siblings since he arrived in East Boston, and he has developed a relationship with his stepfather. He is learning English in school – from a Chinese teacher, he said, amused.

At first, Joel said it was strange, living with this new family. He spent most of his life with his grandparents, aunt and uncle, and cousin in El Salvador. His mother has taught him a lot, though, and he is learning new customs from his American brothers and sister. They play PlayStation and speak Spanglish.

As Joel settles into his new home, however, he remains in legal limbo. Like all of his peers who were taken into custody at the border, Joel has been in removal proceedings since he arrived in the United States. The government puts children on track for deportation and then leaves it to them and their attorneys to prove they should be allowed to stay. Joel's first major court date was this week.

Mary Holper, director of the Immigration Clinic at Boston College Law School, leads one of the many organizations helping unaccompanied minors and other undocumented youth through the court system. Even though the federal government has called on courts to fast-track such cases, Holper estimates it still takes many children up to two years to be granted residency. Children and teens who don't qualify for special statuses that make them likely candidates for a green card – those who were coming north for work opportunity, for example, rather than violence or abuse in their home countries – could be deported more quickly, Holper said. Under the expedited timelines, these children could be sent home in just two months.

For adults, the process is even faster. Homeland Security's Johnson announced in the fall that additional resources had helped them shrink the average return time for Central American adult migrants from 33 days to about four. Thousands of adults were being flown back to Guatemala, Honduras and El Salvador every week by July.

The fast-track plan for unaccompanied minors, though certainly slower than the process in place for adults, makes it harder for attorneys to prepare the best court strategy. For some children, it is in their best interests to petition for asylum. Others who suffer abuse, abandonment or neglect by their parents could qualify for Special Immigrant Juvenile status and be more likely to get residency that way. In some cases, attorneys have to file in state court to prove to federal immigration officials to hold off on deportation while those cases play out.

The faster timeframe, though, does give children resolution more quickly.

“For a lot of these kids,” Holper said, “the uncertainty of their status creates a lot of anxiety.”

Also, the process of telling and retelling horrifying stories of murder and abuse forces children to live through traumatic experiences over and over again in courtrooms and through depositions. Holper said she finds herself in the position of explaining complicated legal strategies to her clients – children who have seen and heard far more than other kids their age but who are still, in the end, children.

One young boy, after hearing the procedural breakdown of part of his case, looked up at Holper and asked if he would be able to ride his bike, given the outcomes she described. For a moment, the juxtaposition of such childish desires with very serious circumstances was too much.

“It's sort of like treating them as little adults when they're not,” Holper said.

'A city of all'

When the flow of migrants across the United States' southern border became a national crisis last summer, the Chelsea Collaborative was one of many organizations to offer help and support. The community organization has hosted food and clothing drives to help new arrivals get on their feet. They have also done coordinated outreach to make sure immigrants feel welcome. That has not been the case in many cities nationwide, nor in the Boston area.

Nearby Lynn, Mass., with a large Guatemalan population, received hundreds of new arrivals joining relatives after crossing the border. Mayor Judith Flanagan Kennedy drew condemnation from immigrant advocates last summer for complaining the unaccompanied minors were draining city resources. Chelsea Collaborative Executive Director Gladys Vega said service organizations like hers partnered with city officials to get out the message that immigrants have always – and will always – be welcome in Chelsea.

“We work very hard with our city officials to promote that solidarity,” Vega said. The 2010 Census counted 62 percent of Chelsea residents as Latino and nearly half of all residents as foreign-born. The small city has the highest portion of foreign-born residents in the state. Its immigrant roots date back to when European Jews flowed into the city, but since about the 1970s, the dominant immigrant group has been Latino.

Chelsea became a Sanctuary City in 2007, meaning local police do not ask about local residents' immigration status or cooperate directly with Immigration and Customs Enforcement.

“We have always promoted a city of all,” Vega said. “I think it was very easy when this landed in our laps to do the right thing for the children and the families and open the doors.”