Opinion: Crisis at the Border

by Matthew Bray

The surge in Central American children crossing the US-Mexico border over the last nine months has been all over the news, and has revealed some of the best—and worst—of this country. Surely, the increase in the number of children crossing the border has overwhelmed the US Border Patrol, who are far more used to arresting adults running from them than children running toward them, and are, moreover, entirely unequipped to care for and house these children. In many instances, these children have fled horrific gang violence and crushing poverty, and have come to the US in search of parents that they have not seen for most of their lives. This difficult situation has exposed the fault lines in American politics and given opportunities for people across the political spectrum to show their true colors.

The surge of new arrivals has provided fodder for Republican criticisms of President Obama as an “Amnesty President.” The president’s meager administrative measures to provide relief to the undocumented are blamed for fueling rumors that children will get a “permiso” if they can make it to the other side of the Rio Grande. (Calling Obama the “Amnesty President” is, of course, baseless posturing given the hard cold facts that many more people have been deported under the Obama administration than during any of his predecessors’ administrations, notwithstanding recent reports that deportations have actually decreased 20% in the last year compared to the year before.)

Indeed, the very Republicans who could not bring themselves to pass—or even debate—the Senate bill passed in June 2013 are falling over themselves to introduce legislation (including Republican Representatives Goodlatte and Chaffetz’s H.R. 5137, “Asylum Reform and Border Protection Act,” and Republican Representative Calvert’s H.R. 5079 that “would amend a 2008 law that unintentionally created a loophole for unaccompanied children from Central America that are detained illegally crossing the border.” This bill would repeal important protections for unaccompanied children included in the Trafficking Victims Protection Act (TVPA) originally signed by Republican President G.W. Bush and reauthorized by President Obama. The chances of passing comprehensive immigration reform are now even more remote than they already were.

It is not, however, just Republican politicians showing an ugly side of America, a land of immigrants. There have been several reports of communities throughout the country publicly protesting the possible temporary relocation of many of these children into their communities, including at least one incident where a bus of frightened children was turned around after community members surrounded it.

The Obama administration, too, is seeking more flexibility to subject unaccompanied minors to an expedited removal without the required due process. But the administration is not waiting for Congressional authorization to act. Immigration attorneys and advocates from throughout the Southwest have been reporting that the administration has been opening numerous facilities to process and house these children as well as mothers traveling with young children. They are conducting on-the-spot removal hearings, with immigration judges and prosecutors patched in via video conference, and Border Patrol officers conducting high stakes “credible fear” interviews (where asylum applicants have the opportunity to establish that there is a significant possibility that they will be persecuted or subject to torture if they are returned to their home countries) without providing counsel to the young people whose lives are at stake.

Some wonder what the point is to having these hearings if these children will be deported back to their home countries anyway. First, there is a basic due process concern. When the word began to filter out on immigration attorney listservs that families were being held in Artesia, New Mexico, at a Border Patrol training academy, attorneys and others made efforts to try to meet with the detainees to provide “Know Your Rights” trainings as well as enter appearances to represent the detainees in their credible fear interviews or before the immigration court; however, without phones, faxes, or clerks to accept their documents, these attorneys have been barred access, while detainees are reporting that they have been told by the immigration officers in charge that they can make decisions and have them deported without the detainees seeing a judge or a lawyer. While the situation may be slowly improving, one wonders how many were deported without the benefit of counsel to determine and advise whether they were eligible for relief.

In fact, the Refugee and Immigrant Center for Education and Legal Services (RAICES) has estimated that a clear majority of the young people crossing the border may qualify for some form of relief.  This relief could include asylum (for individuals and their families who have been persecuted on the basis of race, religion, nationality, or membership in a particular social group), special immigrant juvenile status (for children who’ve been neglected or abandoned by their parents), U visas (for victims of crimes in the US who aid law enforcement in investigating or prosecuting the offender), or T visas (for victims of trafficking); however, as The New York Times reported, without access to “Legal Orientation Programs” or other “Know Your Rights” trainings, and without access to counsel, these children are unlikely to be able to benefit from these protections available under law.

While the administration and others who support these measures believe that expediting these removals are justified in light of the current crisis, they risk creating an even greater backlog in the already backlogged immigration courts. This is because immigration judges must determine whether unrepresented and unaccompanied minors understand the nature of the removal (deportation) proceedings and determine whether they may be eligible for relief. Children, however, who have suffered from drug violence, gang warfare, severe poverty, abuse, and a myriad of other traumas, not to mention a harrowing and dangerous journey through Mexico (which is now even more dangerous and difficult), are unlikely to be able to truly understand these things or be willing to honestly tell their stories to authority figures like armed Border Patrol officers or immigration judges. The situation is untenable, and with the current state of affairs, not only will constitutional due process rights be violated, the deported children could die or suffer serious injury if returned to situations that would otherwise warrant protection.

This crisis has also brought out the best. For every community that protested the arrival of vulnerable young people, many more have opened their doors, including New York City. Many lawyers have also stepped up, traveling from all over the US to the Southwest region to meet with detainees, provide legal orientation, and represent the children and their mothers in court proceedings. These lawyers, along with numerous activist, advocacy, religious, and community groups throughout the country, have taken up the cause of fighting for these children’s rights. These efforts to hold the US government accountable for its obligations under international and domestic law to protect refugees and vulnerable children have served as an important foil to the administration’s due process violations (as well as President Obama’s announced delay on taking any executive action on immigration reform until after the November midterms elections) and the Republicans’ political intransigence.

The efforts have also begun to pay off. While many women and children were deported from the Artesia detention facility before the volunteer lawyers had a chance to establish a response to the crisis, since then many have won reprieves from deportation or been able to win credible fear interviews. Fortuitously, a recent decision of the Board of Immigration Appeals (the nation’s top immigration court) established that married Guatemalan women unable to escape their abusive relationships may constitute a “particular social group” for purposes of asylum. Of course, no sooner had the decision been announced than Republicans cried foul. Still, as a result, some lawyers are reporting asylum wins from detained clients on this basis. There is much more work to be done, but these stories provide hope to the thousands of detained women and children throughout the Southwest, as well as the thousands more who are facing removal proceedings across the country.

The US is not an island, geographically or politically. There can be no doubt that US actions and inactions in Central America over several decades, not to mention American deportation policies beginning in the 1990s, have contributed to the underlying crises that are at the root of these children’s flight from their homes. While the US has no obligation to fix other countries’ problems, it does have basic obligations under international law, and America’s current test is how faithfully it fulfills those obligations in this current crisis. I am hopeful that the best of America will prevail.