Published June 27, 2014
A majority of the unaccompanied minors arriving by the tens of thousands at the U.S.-Mexico border could qualify to remain here, say experts in immigration and the refugee system.
The United Nations High Commissioner for Refugees, which has interviewed more than 400 such children, reports that many of them fled “join or die” gang recruitment efforts or threats by gangs to hurt or kill them or their families.
The UNHCR said that as a result, almost 60 percent could qualify for refugee status or political asylum. The majority of the children are coming from Honduras, which has the highest murder rate in the world, El Salvador and Guatemala.
And many of the children, perhaps as many as 80 percent, immigration lawyers say, could meet the requirements for a Special Immigrant Juveniles (SIJ) visa, which is offered to minors who make it to the United States who are found to “have been abused, abandoned, or neglected,” according to the website of the United States Citizenship and Immigration Services.
The SIJ visa, which arises from laws that were expanded in 2008 to provide protection to child victims of human trafficking, broadened the conditions that would make a minor eligible for the special status, which could pave the way for a green card.
“The numbers that are eligible are really high,” said Bryan Johnson, a New York-based immigration attorney, noting that of the more than 100 children who are represented by his office, “80 or 90 percent would qualify for some type of relief.”
The Obama administration estimates that between October 2013 and September 2014 it will have caught 90,000 children trying to illegally cross the Mexican border without their parents. Last year, the U.S. returned fewer than 2,000 children to their native countries.
Some activists say immigration laws need to be significantly strengthened or the U.S. will be dealing with a floodgate situation that cannot be stemmed.
“It makes it hard to enforce immigration laws against minors,” said Mark Krikorian, executive director of the Center for Immigration Studies. “If these young people are permitted to stay, more will follow. It's all the more reason Congress needs to change that 2008 legislation dramatically. They need to limit that statute to deal with only the most extreme cases."
Johnson, the immigration lawyer, said he noticed unaccompanied minors coming in perceptible numbers to New York – where there is a large Central American community in Suffolk County – last year to join relatives.
To qualify for an SIJ visa, local family judges usually first determine whether a child can be deemed abandoned, neglected or abused. Then the case proceeds to the federal level for consideration for a visa.
Before the criteria for SIJ visas were broadened, children who qualified for them were, for instance, one whose parents were both deceased.
But now, Johnson said, a child who in their native homeland has one deceased parent, an uninvolved or estranged parent, or an abusive or neglectful one can qualify for the visa.
In fact, some immigration experts argue that even the very act of sending a child across the border alone with a smuggler – even if it’s out of a parent's well-intentioned concern and desperation – could form a legal basis for a court argument that the parent acted with neglect by putting the minor in an unsafe situation. And, by extension, a court can be asked to consider the neglect as a basis for giving that minor an SIJ visa.
One Honduran woman who lives in New York, and who remains undocumented, told Fox News Latino that her two daughters – who crossed the border last year with a smuggler whom the mother, who came to the United States in 2010, paid about $11,000 – have qualified for the visa because their fathers never were in their lives.
The mother will never be able to get legal status through her daughters, however, as a condition of their SIJ visa.
But some of the children, it is unknown how many, who come alone from Honduras or El Salvador have parents living in the United States who have Temporary Protected Status, or TPS, immigration attorneys say.
About 64,000 Hondurans received TPS because of the 1998 hurricane there, and more than 200,000 Salvadorans because of the 2001 earthquakes. As is usually the case with this status, TPS has been extended for those groups several times.
The number of unaccompanied minors detained on the U.S. border has more than tripled since 2011. The Vera Institute of Justice estimates that at least 40 percent were eligible for either asylum – for those targeted by gangs to join – or the SIJ visa.
Under pressure to contain the unabated surge of unaccompanied minors and families crossing the border into Texas, Department of Homeland Security Secretary Jeh Johnson and Obama administration officials say they are working with officials of Honduras, El Salvador and Guatemala to spread the word there of the dangers children face making the treacherous trip, and that many of them will be put into deportation proceedings.
Proponents of strict immigration enforcement are pressuring the government to act quicker to return the children, and get tougher on smugglers who, in many cases, are believed to be encouraging the migration in order to make more money.
But immigration experts say when it comes to children, the U.S. government cannot act expeditiously because of international rules as well as its own laws for handling minors. That means it could take years for their cases to be decided.
Daniel Kowalski, a Texas-based immigration attorney who is editor of Bender’s Immigration Bulletin, told Fox News Latino that due process rules essentially prohibit the expedited removal of unaccompanied minors.
The immigration court system they go through, he said, is already struggling with backlogs.
“Because these kids are located in different places, and they’re being moved around, to shelters and with different family members, their case file gets moved from city to city and court to court,” said Kowalski. “A lawyer can ask for more time to get more information for the case. Whichever side loses has a right to appeal, and a child cannot be removed from the country during the appeal process.”
Children are also widely believed to be crossing with their parents in rising numbers, although the Obama administration has not released year-by-year figures. Many families are mothers with young children.
The crisis has sparked weeks of bitter political debate inside the U.S., with the administration saying crime is driving migrants north from Central America and congressional Republicans saying Obama's policies are leading migrants to believe children and their mothers will be allowed to stay.
The United Nations argues that the violence and other problems dogging Honduras, El Salvador and Guatemala are indeed insufferable, and that children, and other citizens, are also fleeing to Mexico, Panama, Nicaragua, Costa Rica and Belize – which have seen a combined 712 percent increase in political asylum claims from those three countries.
Obama administration officials, including Vice President Joe Biden – who visited Guatemala last week and met with government officials there, as well as officials from Honduras and El Salvador – are urging Central American leaders to warn their citizens about the risks and futility of coming to the United States illegally.
Johnson, the Homeland Security chief, has maintained that Obama’s 2012 plan to suspend deportation against undocumented immigrants who arrive in the United States as children is not to blame for the mass migration of unaccompanied minors to the U.S. Southwest border, but rather the conditions in their homeland.
Congress has been working on measures that would increase aid to those Central American nations to combat gang and cartel violence, improve education and the general infrastructure.
Families from Central America tell resettlement workers and journalists in the United States that no matter how discouraging others try to be about coming to this country illegally, the risks pale against the anguish they feel in their countries.
"The story is that you have to give yourself up to the Border Patrol, provide a contact in the United States and you'll be freed even though they give you a court date far in the future," said Ruben Figueroa, a member of the Mesoamerica Migrant Movement who works in a shelter for migrants crossing the southeast Mexico state of Tabasco. "If you combine this information with the violence in the streets and extortion keeping people from living their lives, the result is a massive exodus."
Groups that favor stricter immigration policies say that the Obama administration must do more to gain control of the surge on the border.
Many are pushing for the children and families to be removed.
Krikorian said the SIJ visa was intended to provide relief to a small group of people as an anti-trafficking measure and is now being exploited by undocumented immigrants.
"It’s a subversion of the [original] legislation," Krikorian said. "The point of this is not that anyone gets a visa who is not living with both parents."
And the situation – unless Congress acts immediately – will only get worse, Krikorian said.
"The flow we’re seeing now," Krikorian added, "is the result of earlier people allowed to stay and messaging more broadly that minors in the United States are, in effect, exempt from immigration law.”
The Associated Press contributed to this report.