The views and analyses expressed in this article are the author's and do not represent the positions of the United States Attorney General, the United States Department of Justice, the Civil Division, the Office of Immigration Litigation, or any other Government entity or the American Bar Association. Additionally, this article does not contain arguments to be relied upon in presenting a claim within the parameters of the subject matter discussed.
Child migration— it is a phenomenon of old times; it is a phenomenon of our time. Child migration is not only Joseph of the Old Testament and Claude Franklin, a 13-year-old boxcar boy of the Great Depression. Child migration is also Aylan Kurdi, a three-year-old Kurdish boy, who was found dead on a Turkish beach in 2015 and 10,000 unaccompanied refugee children in Europe, who were declared missing in 2016.
Child migration leaves us wondering—what is our modern society,
particularly our United States of America, doing to address the age-old phenomenon
of child migration? This article attempts—in a limited fashion—to
answer this question.
This article focuses only on children who migrate to the United States from other countries unaccompanied by parents or guardians. The article, moreover, concentrates only on asylum, looking at ways in which United States asylum law and the processes for pursuing asylum are tailored to address the needs of these children and the needs of the country at large.1
The term I will use to identify the subject children of this article is "unaccompanied children." The controlling statute refers to the children as "unaccompanied alien children." These terms first found their way into United States law in the Homeland Security Act of 2002 (HSA). The HSA defines an unaccompanied alien child as a person who:
- does not have lawful immigration status in the United States;
- is under the age of 18 years; and
- is without a parent or legal guardian in the United States.2
The age determination is generally linked to the time at which the child submits an application for asylum and withholding of removal. 3
Of course, unaccompanied children—whether arriving to the United States individually or en masse—predate the term coined in the 2002 HSA. From December 1960 to October 1962, for example, 14,000 Cuban children came to the United States without parents or guardians, in what is now known as Operation Pedro Pan.4 While the Pedro Pan rate of what we now call unaccompanied child arrivals to the United States seems high, the rate pales in comparison to the current mass unaccompanied child arrivals to our country.
In fiscal year 2014 (October 1, 2013-September 30, 2014), unaccompanied child arrivals to the United States surged to over 60,000 (reported at 68,541 by the Secretary of the Department of Homeland Security—up from a tenth that number in fiscal year 2011).5 While "only" 39,970 unaccompanied children arrived in the United States in 2015, 10,000 of these unaccompanied children arrived in the last two months of that year, and 59,692 arrived in 2016.6 According to the Pew Research Center, "[t]he number of apprehensions of unaccompanied children shot up by 78 percent" during the first six months of fiscal year 2016.7 In short, the United States has experienced a dramatic increase in arriving unaccompanied children—tens of thousands of children—and the increase shows little sign of abating.
Adjudication of Asylum Applications of Unaccompanied Children
Before The Department of Homeland Security
When unaccompanied children arrive in the United States, one of their first interactions is with the Border Patrol of the United States Department of Homeland Security (DHS), Customs and Border Patrol (CBP). Soon thereafter, children are placed with the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR), where among other things, they are provided the opportunity to participate in a "know your rights program."8
Typically, unaccompanied children tell government officials that even though they are not citizens or nationals of the United States, they wish to remain in the country because they are afraid to return to their country of origin—most often El Salvador, Guatemala, or Honduras, where there is considerable violence and poverty. This articulation is generally understood as a request for relief from removal from the United States (commonly known as deportation from the United States), in the form of asylum, and protection from a return to their country of origin, in the form of withholding of removal.
Stated another way, the unaccompanied children are asking the United States for at least one of three things. First, they are asking for a grant of asylum in the United States and permission to remain in the country based on a claim of past persecution and/or a well-founded fear of future persecution in their countries of origin—on account of race, religion, nationality, political opinion, or membership in a particular social group.9 Second, they are asking for a withholding of their removal—in other words, they do not want to be sent back to the country from which they came—based on a claim that they were persecuted there in the past and/or that they are more likely than not going to be persecuted there in the future on account of one of the five grounds listed above.10 Third, they are asking for a withholding of their removal, based on a claim that they will more likely than not be tortured there in the future.11
The statutory and regulatory provisions governing unaccompanied children's applications for asylum and withholding of removal and the procedures used to adjudicate the applications take inherent vulnerabilities of children into account. At the very beginning, controlling law affords unaccompanied children asylum applicants, in contrast to other asylum applicants, an automatic opportunity to first pursue asylum (but not withholding of removal) in non-adversarial proceedings before asylum officers in the U.S. Citizenship and Immigration Services (USCIS) branch of the DHS.12
Asylum officers interview unaccompanied children with the express purpose of eliciting full accounts of past harm and fears of future harm. After the interviews, asylum officers evaluate the information unaccompanied children gave them and either grant their asylum applications or refer the applications to immigration court for further consideration.
Before the Immigration Courts
After asylum officers refer unaccompanied children to immigration court, unaccompanied children are placed in removal proceedings by the filing of a charging document, called a notice to appear. The notice to appear is filed with the immigration court. The children are then deemed to be in removal proceedings and must appear before immigration judges.13
Immigration judges are administrative judges housed in the U.S. Department of Justice, Executive Office for Immigration Review (EOIR). Their primary function is to conduct removal proceedings, i.e., hearings where they decide who may or may not remain in the United States.14
Hearings before immigration judges, in contrast to interviews with asylum officers, are fundamentally adversarial. Controlling law and policies, however, mitigate, or soften, the adversarial nature of these hearings for unaccompanied children. Immigration judges have been receiving guidance and training to assist them in tailoring the conduct of hearings in proceedings to the needs of unaccompanied children for years.15
Immigration judges are, for example, counseled to schedule cases involving
unaccompanied children on a separate docket, in other words at a different time
from adult hearings, to the extent practicable. Additionally, immigration judges
have considerable discretion to grant continuances, or postponements for good
Policies regarding whether or not unaccompanied children cases should be placed at the front of the immigration courts' case processing line have been in flux. It is a question of docketing priorities.
In 2015 and 2016, immigration judges were instructed to schedule master calendar hearings for all unaccompanied children swiftly. In 2015, immigration judges were instructed to schedule the master calendar hearings within 21 days of receipt of a notice to appear. In 2016, immigration judges were instructed to instead schedule master calendar hearings for all unaccompanied children, no earlier than 30 days and no more than 90 days from the immigration court's receipt of the notice to appear.17
On January 31, 2017, as this article was preparing to go to press, the docketing instructions to immigration judges changed again. The 2017 instructions expressly rescind the 2015 and 2016 instructions. In contrast to its predecessors, the current instructions set up three different categories of unaccompanied children, with only the first category being designated as a docketing priority. The categories and the priorities are:
- unaccompanied children in the care and custody of HHS/ORR who do not have a potential sponsor identified are a docketing priority (unless and until the children are released from custody);
- unaccompanied children in the care and custody of HHS/ORR who have a potential sponsor identified are not a docketing priority; and
- unaccompanied children who are not in the care and custody of HHS/ORR, and are not otherwise detained are not a docketing priority.18
When it comes to the merits hearings themselves, or the hearings where witnesses testify about applications for asylum and withholding of removal, immigration judges receive general training to probe the record and to ask questions to elicit information consistent with their statutory obligations—training quite pertinent to hearings involving unaccompanied children.19 Specific to unaccompanied children, immigration judges are encouraged:
- to assist in building rapport between language interpreters and unaccompanied children;
- to evaluate unaccompanied children's competence to testify and to assure unaccompanied children that it is alright to say "I don't know" to immigration judge and attorney questions;
- to limit testimony time for unaccompanied children and to allow for frequent breaks;
- to ensure that questions to children are clear and simple; and
- to recognize that children, particularly young children, are unable to present testimony with adult-like precision and to assess credibility accordingly.20
Because of the adversarial nature of hearings before immigration judges, despite the above measures accounting for the needs of unaccompanied children, the question of legal representation of unaccompanied children arises. Controlling law and policies address the question in a number of ways.
Immigration judges are encouraged to facilitate pro bono legal representation of unaccompanied children and to accept aid from unaccompanied children's friends of the court.21 Controlling statutory provisions, however, preclude immigration judges from appointing lawyers for unaccompanied children, providing that while unaccompanied children, just like others in removal proceedings, have the right to counsel (lawyers) in removal proceedings, they do not have the right to counsel at government expense.22
Notably, however, the government does provide some resources towards the legal representation of unaccompanied children.23 On October 22, 2014—during President Obama's administration, the White House issued a press release in which it stated, "[a]s a matter of policy, the administration supports providing access to legal representation and services to unaccompanied children. We need every element of the court process to work effectively to accomplish the goal of both honoring humanitarian claims and processing those who do not qualify for relief." At that time, the White House set forth a list of its efforts to "expand access to legal representation," including: a $9 million grant to two grantees already providing legal services; a partnership between the U.S. Department of Justice and the Corporation for National and Community Service to build a network of approximately 100 pro bono lawyers; and work with State and local officials and professional organization, like the American Bar Association and EOIR's Legal Orientation Program, to provide explanations of the legal system and the immigration process and a list of free legal service providers.24 Additionally, controlling law directs the HHS Secretary to provide unaccompanied children access to lawyers to the greatest extent possible but to do so consistent with the restriction on government funding of lawyers.25
The question of whether the bar to government-paid lawyers creates due process problems for unaccompanied children, notwithstanding the provisions which assist with their legal representation, is currently the subject of litigation. The Ninth Circuit Court of Appeals recently held that: (1) federal district courts do not have jurisdiction, or authority, to consider class action suits in which a group of unaccompanied children argue that the Government violates their due process rights by not paying for their lawyers in removal proceedings and (2) unaccompanied children wishing to make this argument must proceed individually in petitions for review, by seeking review of a final order of removal in the courts of appeal. In a concurrence, Circuit Judge McKeown, joined by Circuit Judge M. Smith, observed that eventually the courts of appeal would address the merits of the children's claim of a right to government-funded lawyers but urged Congress and the Executive "to respond to the dilemma of the thousands of children left to serve as their own advocates in the immigration courts in the meantime."26
Unaccompanied children referred to immigration court by asylum officers have the opportunity to further pursue asylum and to additionally pursue withholding of removal. Governing law provides unaccompanied children certain leniencies, as they pursue these forms of relief and protection from removal in immigration court.
One leniency provided to unaccompanied children pertains to concessions of removability from the United States—including but not limited to asylum and withholding of removal cases. Early in removal proceedings, immigration judges often ask individuals appearing before them whether or not they concede removability. Controlling regulations, however, prohibit immigration judges from either asking unrepresented unaccompanied children to concede removability or accepting their volunteered concessions of removability.27
A further leniency provided to unaccompanied children is that, unlike other asylum applicants, they do not have to apply for asylum within one year of arriving in the United States.28 Consistent with this exemption, unaccompanied children appear to be expressly included in general exceptions to the timely submission requirement, where the governing regulatory provision sets forth the possibility of being excused from the requirement on the basis of a legal disability and then identifies being an "unaccompanied minor" as such a disability.29
Unaccompanied children gain certain advantages through this exemption from the timely application submission requirement. Most importantly, in the vast majority of cases, unaccompanied children can pursue their claims of future persecution under the more lenient asylum "well-founded fear burden of proof" standard instead of the more stringent withholding of removal "more likely than not" standard.30 The lighter burden of proof increases unaccompanied children's chances of being able to establish they are eligible for asylum and thereby, has the practical effect of minimizing the possibility that the children will be removed from the United States. Other potential advantages flowing from the exemption and broader access to asylum relief are increased opportunities: to obtain employment authorization (helpful to unaccompanied children of working age); to designate derivative asylum applicants or riders on their applications; and to obtain government welfare benefits.
Before The Board of Immigration Appeals
If an immigration judge denies an unaccompanied child's application for asylum and withholding of removal, the unaccompanied child, like every applicant for asylum and withholding of removal, can appeal the immigration judge's decision to the Board of Immigration Appeals (Board).31 The Board is an administrative appellate review body, which reviews immigration judge findings of fact for clear error and immigration judge discretionary determinations and conclusions of law de novo.32
The Board evaluates asylum-related cases under the same body of law as immigration judges. To date, the Board has not issued a precedential decision involving an unaccompanied child seeking asylum. If asylum applicants do not prevail before the Board, they have the further right to petition the court of appeals in the jurisdiction where their immigration judge hearing ended for a review of the administrative decision(s).33
Before The Federal Courts
The federal courts have issued a handful of decisions which have potential impact on unaccompanied children seeking asylum, so far. These decisions have addressed only two questions.
First, the courts have reviewed administrative adjudications of asylum applications filed by individuals asserting that they should be considered unaccompanied children. These individuals argue that they should benefit from the TVPRA protection of having a USCIS asylum officer consider an asylum application prior to having an immigration judge consider it.
The courts addressed this argument by answering the question of who does and does not meet the HSA definition of unaccompanied child. Specifically, the courts considered the requirement that an unaccompanied child be an individual under 18 years of age. The courts held that individuals who were under 18 years old when they arrived in the United States but over 18 years old at the time they submitted asylum applications are not unaccompanied children, as defined in the HSA.34 Second, as discussed above, the courts have issued procedural decisions regarding the issue of whether unaccompanied children have a right to counsel paid for by the government.35
The magnitude of current child migration to the United States is nothing short of unprecedented. Admittedly, occasional child migration within/to the United States is not new and mass migration to the United States is not new either.36 It is, however, undeniable that the intense child migration currently taking place in the United States is new.37
The legal frameworks—some well-established, some newly-crafted—address at least some of the needs associated with unaccompanied children seeking asylum in the United States. As the huge influx of child migrants to our country moves forward in unpredictable fashion, there appears to be only one legitimate close to this article—to be continued.
1 The narrow focus of this article means that there are many important child migration issues which this article does not address. Unaddressed issues include: custody and housing issues, family migration issues, and family reunification issues. Further areas this article does not address are legal avenues other than asylum which are available to unaccompanied children who wish to avoid removal from the United States (commonly known as deportation from the United States). See, e.g., 8 United States Code (U.S.C.) §§ 1101(a)(27)(J)(Special Immigrant Juvenile Status, for children with a severely troubled parent), (15)(T)(T visas, for individuals who have been victims of severe human trafficking), (15)(U)(U Visas, for individuals who have suffered substantially as victims of crime).
2 6 U.S.C. § 279(g).
3 See, e.g., Harmon v. Holder, 758 F.3d 728, 734 (6th Cir. 2014).
4 Operation Pedro Pan Group, Inc., History: The Cuban Children's Exodus, available at www.pedropan.org.
5 See U.S. Customs and Border Protection, United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016, (Unaccompanied Alien Children Apprehensions Fiscal Year 2016), available at https://www.cbp.gov/ newsroom/stats/southwest-border-unaccompanied-children/fy-2016 ; see also William Kandel, Cong. Research Serv., Unaccompanied Alien Children: An Overview, at 1 (May 11, 2016), available at http://trac.syr.edu/immigration/library/P11767.pdf.
6 See Unaccompanied Alien Children Apprehensions Fiscal Year 2016. See supra note 5.
7 Jens Krogstad, Pew Research Center, U.S. Border Apprehensions Of Families And Unaccompanied Children Jump Dramatically (May 4, 2016), available at http://www.pewresearch.org/fact-tank/2016/05/04/u-s-border-apprehensions-of-families-and-unaccompanied-children-jump-dramatically/.
8 See HHS, ORR, Division of Children's Services, What You Need to Know About Your Rights and Responsibilities Under the Law, (Apr. 20, 2015), available at https://www.acf.hhs.gov/sites. . . /orr/legal_resource_guide_ introduction_4_20_15.pdf.
9 8 U.S.C. § 1158(b)(1)(B)(i); 8 Code of Federal Regulations (C.F.R.) § 1208.13(b)(2)(A).
10 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b).
11 8 C.F.R. §§ 1208.16(c) and 1208.18.
12 See William Wilberforce Trafficking Victims Protection Act (TVPRA) § 235(d)(7)(C), entitled Enhancing Effort To Combat The Trafficking Of Children, Permanent Protection For Certain At-Risk Children, Access To Asylum Protections, Initial Jurisdiction, codified at 8 U.S.C. § 1158 (b)(3)(C); 8 C.F.R. § 208.9(b); see also Ted Kim, Acting Chief of Asylum Division to All Asylum Office Staff, Memorandum, Updated Procedures for Determination Of Initial Jurisdiction Over Asylum Applications Filed By Unaccompanied Alien Children to All Asylum Office Staff (May 28, 2013)(citing Implementation of Statutory Change Providing USCIS with Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children (Mar. 25, 2009)), available at library.law.yale.edu/…/uscis-memo-updated-procedures-determination-initial-jurisdiction. Also note, The unaccompanied children's opportunity to pursue withholding of removal in addition to asylum occurs later in the process, i.e., before the immigration court.
13 8 C.F.R. § 1003.14.
14 8 C.F.R. §§ 1003.10(b), 1208.2(b).
15 See, e.g., David L. Neal, Chief Immigration Judge, Operating Policies and Procedures Memorandum 07-01, Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children (Sept. 16, 2007)(Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children), available at http://www.justice.gov/eoir/efoia/ocij/oppm07/07-01.pdf.
16 See Immigration Court Practice Manual (Practice Manual), Chapter 4.22(b), at 91 (Dec. 15, 2016), available at https://www.justice.gov/eoir/ office-chief-immigration-judge-0; see also 8 C.F.R. § 1003.29.
17 See Brian M. O'Leary, Chief Immigration Judge, Docketing Practices Relating To Unaccompanied Children Cases . . . In Light Of The New Priorities (Mar. 24, 2015)(rescinded), available at http://www.ilw.com/immigrationdaily/news/2015,0330-EOIR.pdf; Print Maggard, Chief Immigration Judge (Acting), Revised Docketing Practices Relating to Certain EOIR Priority Cases (Feb. 3, 2016)(rescinded), available at https://www.justice.gov/eoir/file/819736/download.
18 Mary Beth Keller, Chief Immigration Judge, Case Processing Priorities, (Jan. 31, 2017), available at www.aila.org/File/DownloadEmbeddedFile /70632; see also Caitlin Dickerson and Liz Robbins, Justice Dept. Reverses Policy That Sped Up Deportations, New York Times, Feb. 2, 2017, available at https://nyti.ms/2k6tSff.
19 See 8 U.S.C. § 1229a(b)(1); JEFM v. Lynch, 837 F.3d 1026, 1039 (9th Cir. 2016).
20Guidelines of Immigration Court Cases Involving Unaccompanied Alien Children, at 4, 7. See supra note 15.
21 See Practice Manual, Chapter 4.22(a), at 91. See supra note 16.
22 8 U.S.C. § 1229a(b)(4)(A); 8 C.F.R. § 1240.10(a)(1); see also Practice Manual, Chapter 4.22(a), at 91. See supra notes 16, 20.
23 See, e.g., Press Release, Department of Justice, Justice Department and CNCS Announce $1.8 Million in Grants to Enhance Immigration Court Proceedings and Provide Assistance to Unaccompanied Children (Sept. 12, 2014), available at https://www.justice.gov/opa/pr/justice-department-and-cncs-announce-1.8-million-grants-enhance-immigration-court-proceedings; see also Announcement of Award of Two Single-Source Program Expansion Supplement Grants To Support Legal Services to Refugees Under the Unaccompanied Alien Children's Program, 79 Fed. Reg. 62,159-01 (Oct. 16, 2014).
24 The White House, Office of the Press Secretary, Fact Sheet: Expanding Access to Legal Representation (Oct. 22, 2014), available at https://obamawhitehouse.archives.gov/the-press-office/2014/09/30/fact-sheet-expanding-access-legal-representation
25 8 U.S.C. § 1232(c)(6).
26 See JEFM, 837 F.3d at 1026. See supra note 18; F.L.B., et al. v. Lynch, 2016 WL 3458352 (9th Cir. June 24, 2016)(Order).
27 See 8 C.F.R. § 1240.10(c).
28 See TVPRA § 235(d)(7)(A), 8 U.S.C. § 1158(a)(2)(B).
29 See 8 C.F.R. § 1208.4(a)(5)(ii).
30 Contrast 8 C.F.R. § 1208.13(b)(2) with 8 C.F.R. §§ 1208.16(b)(2) and (c)(2).
31 8 C.F.R. § 1003.1(d).
32 8 C.F.R. § 1003.1(d)(3).
33 8 U.S.C. §§ 1252(a)(1), (b)(2).
34 See 6 U.S.C. § 279(g); see also Harmon, 758 F.3d at 734-735. See supra note 3; Mazariegos-Diaz v. Lynch, 605 Fed. Appx. 675 (9th Cir. 2015); Xin Yu He v. Lynch, 610 Fed. Appx. 655 (9th Cir. 2015)(Mem).
35 See JEFM, 837 F.3d at 1026. See supra notes 18, 25.
36 See, e.g., Errol Lincoln Uys, Letters From The Boxcar Boys And Girls, available at erroluys.com/letter2.html; History: The Cuban Children's Exodus.
37 Kandel, Cong. Research Serv., Unaccompanied Alien Children: An Overview. See supra note 5.