The “Surge”: The Tug-Of-War Between a Clogged Immigration System and Humanitarian Help for Unaccompanied Minors

Adrian grew up mostly on the streets in Guatemala City, his abusive father a crack addict and his mother everywhere but around, leaving him with a thin, green-eyed prostitute friend who would sometimes have sex with johns right there next to him. He’d seen robberies, stabbings, shootings; he’d never once set foot in a classroom. Eventually he started making a little money selling clothes and makeup in the city’s colonial district. It wasn’t much, but even so the Barrio 18 street gang took notice and started asking for a cut. When Adrián didn’t budge, they pockmarked his tiny stall with bullets. It was time to leave.”

BY SABRINA NIEWIALKOUSKI—This is just one of many stories of children fleeing the brutal violence and poverty in Central America. The majority of these children undertake a perilous and life-threatening journey without any adult supervision, to reach America to start a new life—and for many, simply to survive. According to a report from the United Nations High Commissioner for Refugees, 58 percent of the 400 youth the agency interviewed “had suffered, been threatened, or feared serious harm” that might merit international protection. As a result “the surge” of children is becoming more of a refugee situation than an immigration issue, as they are being constructively forced to leave their home countries. Over 57,000 children have fled their home countries since October seeking refuge in the United States­—and the numbers continue to grow.

As a result, immigration courts, which are already overburdened, are facing an influx in cases. But the main problem lies in the fact that these children, because they are undocumented immigrants, are not given the constitutional right to legal representation. “Many of them might be eligible for relief that allows them to stay in the U.S., such as special immigrant juvenile status, asylum or visas for victims of crime.” Most of these children do not have the means to pay for an attorney, and without an abundance of pro bono representation many children will be unable to make a compelling case for themselves, and will be deported.

Additionally, in most of the unaccompanied minor cases, “[h]earings are frequently delayed for defendants without legal counsel, compounding a caseload that reached 375,373 at the end of last month—more than 1,500 for each of the nation’s 243 immigration judges. In some parts of the country, hearings aren’t being scheduled until 2017.” This not only affects the cases involving unaccompanied minors to be delayed, but all other cases in the immigration dockets are being pushed back to 2019 to make room for them.

Most of the unaccompanied minor cases are adjudicated as Special Immigrant Juvenile Status (“SIJS”). This process is long and time-consuming, requiring the child to be adjudicated as independent because he cannot reunite with one or both parents. In addition, “the juvenile court must find that it is not in the child’s best interest to return to his country of origin.” Once this process is complete, the child can petition for SIJS with the United States Citizenship and Immigration Services (“USCIS”).

The solution, although not in any way perfect, is simple. As of right now, courts are being backlogged years, leading to unresolved cases for both unaccompanied minors and applicants of all other immigration categories. In response, an easier and more straightforward application process for these children must be developed—much like Temporary Protected Status (“TPS”). Temporary Protected Status is granted when the Secretary of Homeland Security designates a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. These include ongoing armed conflict, environmental disasters, and other extraordinary and temporary conditions. This is hardly a stretch for the Central American countries that unaccompanied minors come from—which have the highest homicide rate in the world and unheard of living conditions.

How would this decrease the backlog? Applying for TPS is a much simpler process than that of Special Immigrant Juvenile Status. In fact, it is as easy as filling out an application and sending it to USCIS. Although this process would continue to require the assistance of attorneys for these unaccompanied minors, it would unburden both the courts and the children. The courts would be able to get up-to-date with their caseload, making the immigration system more efficient—and the children would get to move on with their lives without waiting years in the shadows to become productive members of American society.

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