By Attorney Farhad Sethna ©2014

Recent news reports have been addressing the unprecedented humanitarian crisis at our southern border- the influx of tens of thousands of children from Central American countries- primarily Guatemala, El Salvador, and Honduras.

Estimates indicate that as many as 57,000 children have crossed into the United States and are either been detained by US agencies, or have been released to family members or other responsible adults within the United States.

Can the US Government return these children and families to their home countries?

Much blame has been placed on the administration for allowing these children to enter the United States.  First of all, let’s address the administration’s ability to turn these children away at the border:

The administration is prevented from turning away these oftentimes unaccompanied children at the border on the basis of two legal principles:

1.    The United States’ ratification of and consequently, agreement to uphold international human rights treaties including the UN Refugee Convention, which prevents the removal of an individual to a country if he or she claims persecution in that country; and

2.    The United States’ domestic legislation called the TVPRA (Trafficking Victims Protection Reauthorization Act), which requires that any individual who is a unaccompanied minor needs to be given due process protections upon entry to the United States in order to make his or her claim for refuge from conditions in their home country.

Therefore, despite strident right-wing calls to “round ‘em up and ship ‘em back ”, it would be illegal for the United States to do so.

What are the consequences of this influx of UAC’s and families?

As a consequence of the influx of children at the southern border, both the US Customs & Border Protection and the US Immigration Court system have been overloaded.  An already very burdened court system has been further burdened by the influx of tens of thousands of these children, most of whom do not even speak English.  Some of them may not even speak Spanish, but instead speak some native indigenous language.  Since an alien is not entitled to government-appointed counsel in immigration proceedings, these aliens have basically no representation in a setting that is completely unknown to them.  These problems set up the potential for serious due-process violations.

Can these cases be “fast-tracked?”

In response, the US Department of Homeland Security and the US Department of Justice (which oversees the immigration courts, or EOIR) have adopted an expeditious processing approach for these cases.

The DHS is scheduling these applications for initial hearings (also called Master calendar hearings) in front of an immigration judge within two to three weeks of an alien child’s case being transferred to an immigration court within the United States. These cases are being sent to courts throughout the United States in order to spread out the workload.

Further, once a case is scheduled, the immigration courts are attempting to set Individual calendar (or trial date) hearings within 60 days.  These are not mandates, but are recommended processing times for US government policy to address the issues presented by these minor children. The union of immigration judges has expressed concern to Congress with overloading the system, lack of resources, and a caution against any hasty legislation that would abrogate the due process rights of these unaccompanied children or trafficking victims.

Unaccompanied minors can also file asylum applications with the U.S. Asylum Office.  The Asylum Office has been expediting processing of these applications and setting interviews soon after applications are received, using up available interview slots to the detriment of applicants from other countries.

Unaccompanied alien children may be released to an adult who has been vetted by the US Department of Homeland Security.  This adult may be himself or herself undocumented, but as long as they do not have a criminal record, they may receive the alien child into their household.  This reduces the substantial burden on the US government and the taxpayer.

What are some of the consequences of “fast-tracking” these cases?

Extreme vigilance is required in both the part of the courts as well as child advocates that abuse of these innocent and defenseless children does not occur.  They do not know the law. They do not understand the legal process. They do not know the language. Their background has given them a high level of distrust for authorities. They have learned to fear law enforcement in their own home countries, and carry that fear over to the United States.   These aliens are, in most instances, young or teenage children. They are scared, uneducated, and fleeing dangerous and difficult conditions. They have already been exploited – more than once.  They need child advocates and honest competent representation at every step.

Conclusion:

The unprecedented and unexpected influx of children at the southern border represents a incredible and unique humanitarian problem for the United States. However, by coordinating efforts between federal, state, local and private entities, this situation can be managed.  Various attorney agencies have set up pro bono (“no charge”) clinics and are offering pro bono representation to these children, who obviously have no resources for private representation.  Likewise, courts and the Asylum Office should be urged to provide diligent and timely hearings to these children, yet retain the compassion and understanding that small children and even teenagers do not have the legal skills or abilities to provide evidence and testimony in a courtroom, especially when most of them have not had the benefit of a sound education.

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About the author: Attorney Farhad Sethna has practiced law for over 20 years.  Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases.  Our number is: (330)-384-8000.  Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.

This is only general legal information.  Please consult a qualified immigration attorney for advice on your specific case.

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