US immigration bill: silence on the deportation of children

Unaccompanied minors best illustrate the need and mechanisms for true comprehensive immigration reform yet the proposed bill does little for this highly vulnerable, fastest growing subset of migrants to the US, says Elizabeth Kennedy.

Elizabeth Kennedy
3 June 2013

After months of secret meetings, the ‘Gang of 8’, a bipartisan group of 8 US Senators, released The Border Security, Economic Opportunity, and Immigration Modernization Act on April 16th. Their plan for comprehensive immigration reform includes a 13-year path to citizenship, increases in caps for high skill, low skill, and agricultural work visas and an influx of cash to further strengthen border security (which has already increased tenfold in the past decade and costs billions). No measure is contingent on another, and all would take effect at the same time.

Receiving 300 proposed amendments from Senators over a two-week period, debate of the bill began in the 18-member Senate Judiciary Committee on May 9th. This committee vets legislation to increase its likelihood of passage before going to the entire 100-member Senate for voting. 141 tweaks later (primarily to bolster conservative support), the largely intact bill passed 13-5 in its first real test on May 21st. It now awaits full discussion that will start on June 3rd when Congress returns from a brief recess.

Importantly, conservative efforts to make the path to citizenship more difficult or contingent on border security goals were largely rejected. High-skilled work visas will more than triple, and corporations will not have to first attempt hiring an equivalent, US-born employee. Border enforcement will need to reach 90 percent effectiveness along the entire Southern border, not just ‘high risk’ areas, and a biometric entry-exit system will be piloted over the next six years at the nation’s 30 largest airports.

Many are guardedly optimistic. Senators on both sides see reform as a pressing need, and key Republicans have indicated they will not attempt to block debate. The Senate will hopefully pass its version by the end of June, at which point attention will turn to the House to do so before the longer summer recess begins on August 2nd.

In the House, no bill has emerged yet, but details are supposedly coming. Majority House Republicans have threatened to dismantle the elaborate package and instead pass their desired pieces separately. If they do so, the US will once again fail to pass immigration reform.

Even if this bill passes, it does little for the thousands in detention, the hundreds of thousands who have been deported, and the unknown numbers who are now journeying to the US – a problem of the 1986 Immigration Reform and Control Act, the last piece of comprehensive immigration reform in the US.

Silence on Unaccompanied Minors

Besides proposing that all unaccompanied minors be provided free legal representation through the Department of Justice – a role up until now taken on by nonprofits like Kids in Need of Defense (KIND), Casa Cornelia and the Young Center, the reform bill does little else for this highly vulnerable, fastest growing subset of migrants to the US.

Only a few days after the Gang of 8’s announcement, 17-year-old Adaulban was deported from an adult, Department of Homeland Security (DHS) detention center in the US back to Mexico.

Alone and under the age of 18, he should have been transferred to an Office of Refugee Resettlement shelter within 72 hours of his apprehension, as laid out in the 1997 Flores Settlement Agreement. Instead, after three days in the adult detention facility, Adaulban was sent by bus to the other side of the border, where few shelters receive boys between the ages of 12 and 18.

Nearly a year before, the same story played out but with a different outcome. Within hours of President Obama's June 15th 2012 announcement that DREAM Act-eligible youth would be allowed to apply for temporary holds on their deportation proceedings (over 450,000 of whom have applied in March 2013 alone), Arizona officers stopped a van carrying a five or six year old girl called Rosita and 15 non-relative adults. The officers demanded that all show proof of residence or citizenship, but none could.

Agents were required by the Trafficking and Victim’s Protection Reauthorization Act (TVPRA) to ask limited and straightforward abuse questions. If the migrant was determined by the TVPRA screening to be an unaccompanied minor, s/he must be transferred to Office of Refugee Resettlement care regardless of any other factors.

Rosita only remembered her first name after the traumatic journey. She could not recall her country of origin. She also couldn’t remember her last name, age, or relative with whom she would reunite in the US.

No one questioned that she was unaccompanied. As such, like Adaulban, she had to be transferred to Office of Refugee Resettlement (ORR) facilities within 72 hours. Yet, she remained at the adult detention center – like Adaulban, as government officials of the US, El Salvador and Mexico hurriedly attempted – at great cost and using questionable methods – to determine whether Rosita was from El Salvador or Mexico.

They asked Rosita, who could not remember her last name, if she knew what the word for “soda” was, if she knew what a “pupusa” (a common Central American food) was, and if she knew what the automobile she took to school was called. Because she did not know the latter, most likely because she was not attending school, they thought she might be Mexican. In doubt, they took 3 days to find her grandmother in California.

As was painstakingly portrayed in the film Under the Same Moon, even young children may decide to migrate without telling their families. It could be days before families know where their children are and how to get them. Then, because many unaccompanied minors’ family members are undocumented, they hesitate to risk their lives and livelihoods to coordinate their child’s reunification with government officials.

Once found, Rosita’s abuela confirmed in seconds that she was from El Salvador. Rosita was safe. She was transferred to Office of Refugee Resettlement care. Had her grandmother answered that she was Mexican, she likely would have been sent back across the border like Adaulban.

Unequal by origin: differential treatment

Department of Homeland Security statistics show that since 2005, 425,108 persons under the age of 18 have been detained upon crossing the US border. Some 60 percent (255,064) were unaccompanied.

Only 70,000 entered Office of Refugee Resettlement’s (ORR) care in the same period – less than a third of the number apprehended, even reflecting the recent upsurge of the nearly 14,000 who entered in 2012.

Adaulban, and over 150,000 other Mexican unaccompanied minors like him since 2005, were never transferred to Office of Refugee Resettlement care. According to Mexico’s National Institute of Migration (INM), they were instead deported, violating both TVPRA and the 1997 Flores Settlement Agreement. 

The Appleseed Report, by Betsy Cavendish and Maru Cortazar, documents that unaccompanied minors from Mexico are denied the basic protection granted “Other than Mexicans” (OTMs). Many never receive mandated TVPRA screening and thus cannot receive the necessary classification to enter ORR’s care. Those who are fleeing abuse, trafficking or destitution are returned in contradiction of US law, as laid out in TVPRA and Flores.

Such illegal returns coincide with the extreme difficulty experienced by Mexican adults in filing successful asylum and refugee cases in the US. According to UNHCR’s 2011 data, Mexico has no internal displacement and only a few thousand refugees. Mexicans also have the lowest success rates in the US for obtaining asylum.

Nonetheless, the Internal Displacement Monitoring Centre just released a report that states that Mexico has 160,000 or more who are displaced by cartel violence. These are the first attempts to estimate forced migration. No numbers exist for Central American nations. Why can Mexican children (and adults) be treated differently to citizens from other nations when policy mandates screening and transfer to care for all who are alone and under the age of 18, abused, trafficked or at risk of return to persecution or torture? Why is this the case, especially when the situation on the ground suggests genuine and often escalating threat of life?

A Gentleman’s Agreement

Since President Obama took office in January 2009, over 2 million people have been detained or deported, even as border apprehensions have steadily declined over the same period and Mexican migration is now at net zero. Between 1997 and 2007, aforementioned security efforts have divided over 1 million family members. Between 2010 and 2012 alone, over 200,000 parents of US citizen children were deported, leaving the children either behind in foster care or forced to accompany their parents to countries where they often have few rights and knowledge of customs and language.

Since immigration offenses are civil matters in the US, detainees have no right to legal counsel. Yet they do have a right to a trial. Through bilateral agreements, citizens of neighbouring nations – Canada and Mexico – are nevertheless entitled to expedited removal: if the detainee waives her/his right to a trial, s/he can be removed the next day. The Department of Homeland Security gives them back their belongings, places them on a bus, and lets them go free with a signed agreement that they will not return for a certain number of years. Should they return, the bar to which they have to prove risk of life is raised, as are the number of years for which they cannot return if deported again.

Mexican officials assert their ability to provide all services and support that Mexican unaccompanied minors need and thus ask that their youth be repatriated as quickly as possible as per these agreements. Mexican and US attempts at their own state protection through this ‘Gentleman’s agreement’ can come at the cost of these children’s lives. Their assertions are made despite growing violence and a decreasing ability of the state government to act against non-state gangs.

Similarly, it coincides with overflowing orphanages in Mexican border towns and accounts of these youth being targeted for both human and drug trafficking. Despite assumptions by Mexican and US officials that these minors have families willing to support them, my conversations with advocates lead us to believe that as many as 20 percent of unaccompanied minors lived on the streets prior to migrating and will once again find themselves destitute if deported.

Moving forward

Unaccompanied minors best illustrate the need and mechanisms for true comprehensive immigration reform. Many children migrate to reunite with a parent, a parent who had to move to the US when her/his job moved North because of free trade agreements that did not benefit all equally or because of increasing poverty at home. Other children are fleeing growing violence and forced gang recruitment that resulted from US deportation of convicted felons beginning in the 1990s and drug policies meant to prevent trafficking. A smaller group of orphans come because their parents died of drug addictions or shootings caused by gangs started in the US but exported to their countries. These are both historical and regional problems that require holistic attempts at reforming a long broken system. Sadly, current comprehensive immigration reform legislation does not address any of these problems and instead focuses on easy but insufficient goals that even still may not be achieved.

This is the third and final article by Elizabeth Kennedy in a three-part series on undocumented migration to the United States. Read the first and the second.

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