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  1. New York Officials Support Border Children's Best Interest Rights. By Roger Algase

    Update, July 28, 8:25 am:

    And in an example of rank hypocrisy, Maryland Governor Martin O'Malley (D), who has spoken out eloquently on behalf of the border children, protested when federal officials proposed to house some of them temporarily at an Army Reserve facility in his state. See the Washington Post Editorial: Gov. O'Malley is all talk, no action, on immigrant children ​(July 27).

    Update: July 28, 6:30 am:

    Municipal officials in New York and Syracuse are not the only ones who are supporting the rights that Central American children have under current federal law to stay in the US pending immigration court determination of their claims for asylum or other relief. Chicago has also offered temporary shelter to 1,000 border children fleeing gang violence and other dangerous conditions in Guatemala, Honduras and El Salvador.

    Fox News Latino quotes Chicago Mayor Rahm Emanuel as stating:

    "We cannot turn our backs on children that are fleeing dangerous conditions. We will do our part to ensure that these children are given access to services and treated fairly and humanely."

    See City Of Chicago Offers Temporary Shelter To 1,000 Central American Migrant Children, July 27

    Indiana has also accepted 245 border children, according to the Indianapolis Business Journal: Indiana Receives 245 Children Caught at U.S. Border (reprinting a July 24 Associated Press report).

    On a related note, there is a widespread belief that if the TVPRA (discussed below and in my previous posts) were amended in order to eliminate the guarantee of an asylum hearing before an immigration judge now afforded to children from every country in the world except Mexico (and Canada, which was obviously thrown in for cosmetic purposes, since no one expects any influx of child refugees on America's northern border), then it would be easy to send all of the border children back home without any legal process at all. In what would amount to "immigration reform" in reverse, Congressional Republicans are trying to change the TVPRA in order to eliminate the guarantee of immigration court hearings.

    But assuming that this would make it possible to send every child caught at the border on a plane back to Central America without further ado is based on a serious misunderstanding of the rights of children from contiguous countries under the same statute. This issue is discussed in detail in an analysis of asylum claims by Mexican children at the US border by the Immigration Policy Center. See Mexican and Central American Asylum and Credible Fear Claims: Background and Context (May 21).

    This study will be the subject of my forthcoming post.

    My original post appears below:

    Huffington Post Latino Voices reports on July 25 that New York City Council Speaker Melissa Mark-Viverito is suggesting that New York City should provide shelter to some of the Central American border children who are in the US awaiting asylum hearings (as required by current law). She said:

    "...I think we should be humane about the way we deal with situations like this."

    Meanwhile Stephanie Miner, Mayor of Syracuse NY, which has recently offered shelter to some of the children, has written a letter to President Obama saying:

    "As a city with a rich immigrant tradition, we strongly feel that these children should be welcomed and protected."

    And Nisha Agarwal, New York City's Commissioner of Immigrant Affairs, stated:

    "My reaction to the whole situation is that these are children and they are the victims here...There are deeper root causes that we need to be addressing rather than shuttling these kids as fast as we possibly can back to situations of violence."

    The statements of these officials are also entirely in accordance with Section 235(c) of the TVPRA, which mandates that the best interests of the child should be protected in all arrangements concerning custody of the children pending removal hearings.

    Opponents of this law regard this protection as an aberration, with the consequences of allowing children to remain in the US beyond the actual intention of Congress, but this is simply not true.

    As shown below, despite its title, the TVPRA (Trafficking Victims Protection Reauthorization Act) is not limited to protecting child trafficking victims, but is meant to protect other vulnerable children as well. The doctrine of respecting the best interests of unaccompanied children in immigration custody grew out of the INS settlement agreement in the Supreme Court Case of Reno v. Flores, 507 U.S. 292 (1993). Repealing section 235(c) would turn the clock back on immigrant children's rights in the US to the pre-Flores era.

    Considering the best interests of the child is not only required with regard to shelter/custody arrangements, according to the above statute. TVPRA Section 235(c) also provides for the appointment of Child Advocates to assist the children in immigration court proceedings.

    The Young Center for Immigrant Children's Rights (of the University of Chicago) points out the following in its Young Center Proposal for a Best Interests of the Child Visa (January, 2011 with revisions dated June, 2013):

    "At present, TVPRA Section 235(c)(6) provides for the appointment of Child Advocates for trafficking victims and other vulnerable unaccompanied immigrant children and provides that the role of the Child Advocate is to advocate for the best interests of the child. The Child Advocate makes best interests recommendations to decision-makers using standards set forth in state child welfare laws and international law. However at present, many immigration judges still do not consider the child's safety and well-being when making decisions regarding removal." (Emphasis added.)

    Sheltering the children in immigrant-friendly localities such as Syracuse and New York City, instead of parts of the country controlled by politicians who are more hostile to Latin American immigrants of all ages (and status, legal or otherwise) could make it easier to achieve the above statutory goal of making sure that the children's best interests are protected in all matters relating to removal proceedings.

    The Huffpost article is called New York City May Begin Housing Unaccompanied Border Children.

    The link is


    Updated 07-28-2014 at 07:25 AM by ImmigrationLawBlogs

  2. Has the BIA found a Better Way to Deprive Children of Asylum Rights? By Roger Algase

    Update: July 25, 10:00 pm

    The Hill reports that on July 25, President Obama told Central American leaders that only a few of the more than 50,000 children from El Salvador, Guatemala and Honduras who have been seeking entry to the US would be able to apply for refugee status. He said:

    "As I explained to my fellow presidents [of Guatemala, Honduras and El Salvador], under US law, we admit a certain number of refugees from all around the world based on some fairly narrow criteria."

    The president continued:

    "If that were the case it would be better for them to apply in-country rather than take a very dangerous journey up to Texas to make those same claims...But I think it's important to recognize that that would not necessarily accommodate a large number of additional migrants."

    In other words, the president is telling the children to go back and apply at home, but don't expect to be let into the US unless they are among a very lucky few who would be allowed in.

    With this attitude on the president's part, and faced with an opposition party whose basic attitude appears to be that no Central American children at all would be too many (as a Canadian immigration minister was reported to have said with regard to admitting Jewish refugees to his country during WW2), anyone who thinks that returning to Central America to apply for refugee status is a substitute for pursuing an asylum claim before an immigration judge in the US would be fooling himself or herself.

    My original post follows.

    There are now news reports to the effect that not only some "centrist" Democrats in Congress, but Hillary Clinton herself, may be jumping on the bandwagon of changing the TVPRA to give the president greater "flexibility" in dealing with the Central America border children. "Flexibility", in effect, is little more than a euphemism for gutting the protections of TVPRA Section 235, which prohibits returning children from non-contiguous countries without first allowing them an asylum hearing before an immigration judge.

    My colleague Nolan Rappaport, a distinguished legal scholar with extensive experience in the Congressional legislative process regarding immigration, argues that depriving children of their right to an asylum hearing would not do them any significant harm, because few of them would be eligible for asylum anyway under strict BIA interpretations of the asylum law, especially the requirement that the fear of persecution in gang violence related cases has to be based on membership in a "social group".

    He advocates a "better way" of turning them away from safe haven in the US and putting them in charge of the UN for refugee screening in "safe" areas in their own countries (which may or may not exist). Then, he argues, at least some of the children could later be admitted to the US as refugees. But is the assumption that few if any of these children will be granted asylum if given hearings in the US justified?

    The BIA has held in numerous decisions that individuals who have or may be threatened with gang violence because of opposition to joining a gang, or having been a former gang member and then left the gang, are too amorphous to be considered as members of a "social group" for asylum purposes.

    As a result, even some individuals who can show that they have in fact been threatened by gang members, or even been seriously injured by them, have been denied asylum for this reason.

    Some Federal Circuit Courts of Appeal have upheld these decisions because of a doctrine that an agency's interpretation of the law its own area of "expertise" should be given deference.

    But other circuits, notably the 3rd and 7th Circuits. have been highly critical of the BIA's narrow approach to this question. In my July 22nd post, I mentioned the recent BIA decision in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), in which the BIA reopened a gang-violence related case in which it had previously denied asylum and remanded ot to an immigration judge for further fact finding with strong encouragement to do so from the 3rd Circuit.

    However, on the same day (February 7, 2014), the BIA decided a companion case, Matter of W-G-R-, 26 I&N Dec. 20 (BIA 2014), in which it stated that even former gang members failed the test of "particularity" for a social group, because former gang members could include "persons of age, sex or background".

    In a February 2014 study by the Chicago-based National Immigrant Justice Center entitled "Particular Social Group Advisory: Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R-", the NIJC states that these decisions:

    "...seek to rationalize a legal test that is simply irreconcilable with existing domestic and international asylum law".

    The reasons for this statement will be discussed in a forthcoming post. The importance of this issue lies in the fact that the politicians in both parties who want to deny children the right to asylum hearings that they have under current law have been assuming that the children have no rights under our immigration laws so the sooner they can be returned to their gang-infested countries, the better for the US.

    Nolan Rappaport, while sympathizing with and supporting humane treatment for the children, also mentions the W-G-R- decision as support for the proposition that the great majority of the border children have no right to asylum in the US. As the exhaustive NIJC analysis which I will be discussing shows in great detail, this conclusion is open to very serious question.

    However, Nolan has also referred me to materials dealing with the 1990's Haitian boat people issue which may contradict the BIA's most recent pronouncement on this issue. I will discuss those in a future post as well.


    Updated 07-25-2014 at 09:00 PM by ImmigrationLawBlogs

  3. Is Removing Children Without Asylum Hearings a "Better Way"? By Roger Algase

    In my July 22 post, I began a discussion of Nolan Rappaport's article A Better Way, in which he suggests an alternative way of dealing with the large number of unaccompanied children who have been arriving at the US border seeking refuge from gang violence and other dangerous conditions in the three Central American countries of El Salvador, Guatemala and Honduras. This post will continue this discussion, from the perspective that Nolan urges, and which it would be hard to dispute, namely determining what is in the child's best interests. This is also the stated purpose of the TVPRA itself.

    The solution that Nolan suggests, boiled down to its essentials, consists of turning the children over to the United Nations for protection outside the US instead of processing them for asylum hearings in the US. Ultimately, Nolan contends, at least some of the children could then be admitted to the United States as refugees after being screened by UN staff to see if they qualify for refugee status. The others would be returned to their countries under UN supervision, working closely with the governments of the countries concerned, as well as the US.

    There can be no doubt that the UN agency involved, UNHCR, has great expertise in asylum and refugee issues, including those affecting children. Nolan refers to an exhaustive study of Mexican and Central American children's refugee issues in the UNHCR report Children on the Run, which was released in March, 2014, as an example of the UN's ability to deal with child refugee issues in a way that would respect the best interests of each child more than America's flawed asylum system. Nolan argues that under current asylum policies, only a small percentage of the children involved would actually be granted asylum even if granted the full asylum hearings in immigration court which current law guarantees them (see Section 235, TVPRA). He also mentions the many practical difficulties of caring for the children in the US pending their hearings, providing for enough judges, and, most of all, persuading Congress to appropriate money to enforce the TVPRA.

    In short, Nolan argues that the children would be better off under the protection of the UN, outside the United States, rather than in the custody of the US Department of Health and Human Services (HHS) inside the US, as provided by the TVPRA.

    He states:

    "The United States does not have to assume sole responsibility for helping the unaccompanied alien children from El Salvador, Guatemala and Honduras. Their plight is an international problem. The United Nations High Commissioner for Refugees (UNCHR) should be involved in finding a way to help them."

    He continues:

    "UNCHR Washington has developed a Refugee Protection and Mixed Migration 10-Point Plan of Action, which is described in their Report, 'Children on the Run'...Congress can make it possible for unaccompanied alien children from El Salvador, Guatemala and Honduras to benefit from the implementation of the 10-Point Plan by passing a bill that would exempt them from the removal-hearing requirement in TVPRA and remove any other obstacles to moving them out of the United States."

    What would then happen to the children after being moved out of the United States? Nolan proposes:

    "The children could then be moved to temporary locations outside of the United States, which could be chosen by agreements among the Governments of El Salvador, Guatemala and Honduras and the United States. When the children are safely placed in these locations, UNCHR could screen them to see which ones are eligible for refugee status. The rest of the children could be returned to their native countries when arrangements have been made with the governments of these countries to provide safe environments for them."

    The above may sound reasonable in theory. But in practice, it overlooks the fact that Nolan's plan depends on the cooperation of the same Central American governments that have done so much to create the refugee crisis by failing to protect the children from gang-related violence in the first place. In essence, Nolan's proposal is little more than an elaborate form of refoulement, something that goes against the most basic principles of international refugee law, as an Appendix to the above UNHCR report points out.

    Beyond this, Nolan's proposal directly conflicts with the UNHCR report's goal of strengthening, not weakening, asylum rights in the countries which child refugees are seeking to enter. In this critically important respect, Nolan's proposal would not support the UN's objective of protecting child refugees. Instead, it would undermine the UN's purpose.

    In its March 12 press release for the Children on the Run report, UNHCR states:

    "The number of children making the perilous journey [from Central America] alone and unaccompanied has doubled each year since 2010. The US government estimated, and is on track to reach, 60,000 children reaching United States territory this year in search of safe haven.

    Although the US receives the majority of new asylum claims by both children and adults from El Salvador, Guatemala Honduras, it is not alone...

    Globally, the protection of children is a core priority for UNHCR. The international community has long recognized both the right of children to seek asylum and their vulnerability."
    [Emphasis added.]

    And in the opening remarks by Antonio Guterres, UNHCR High Commissioner, made on the same day in launching the above report he stated:

    "We must uphold the human rights of the child as laid out in the relevant international and regional instruments - as well as the right to seek asylum and protection under the 1951 Convention and its 1967 Ptotocol.
    [Emphasis added.]

    Do the above UNHCR statements support changing US law in order to deny asylum hearings to Central American children arriving at our border so they can be more speedily removed from the US? Only an Alice in Wonderland reading of the UNHCR pronouncements would support this view.

    The conclusion that Nolan is debating against the UN, instead furthering its goal of protecting Central American refugee children to the greatest extent possible, finds even greater support when the appendix to the Children on the Run report dealing specifically with asylum and refugee issues is examined in more detail. This will be done in my next post about this issue.

    I do not mean to overlook the fact that Nolan's proposal may have some merit on its own, particularly since it contemplates that some of the children might be eligible to return to the US in refugee status, which he appears to assume might be easier to obtain outside the US than political asylum would be in the US. But whatever merits (if any) Nolan's proposal might have in its own right, he should not imply that his plan is consistent with UNHCR's goals or objectives, at least as far as the all-important issue of whether US law should be changed to deny the children the right that they have to asylum hearings under current law.

    It is quite clear that the UN plan which Nolan recommends so highly would be opposed to such a change.

    Updated 07-24-2014 at 10:31 AM by ImmigrationLawBlogs

  4. Refugee Children Deserve Humane Treatment and Legal Process Pt. 2, by Roger Algase

    Nolan Rappaport, a former Immigration Counsel on the House Judiciary Committee who is a highly respected expert in immigration law, has come out with a proposal for dealing with the child refugee crisis at the US border through the United Nations. This proposal, dated July 14, 2014 deserves serious consideration. It is entitled: Meeting the Challenge of Unaccompanied Alien Children at the Southwest Border: Is There a Better Way?

    I will provide a link in my next post.

    Nolan has also been kind enough to share his insights with me in a number of personal communications, which I also greatly appreciate. The following comments, which are based entirely on a published article of his, are critical in some aspects. But they are offered in the spirit of great respect to a colleague who is an unquestioned and highly regarded authority on immigration law.

    Nolan's proposal has both strengths and weaknesses from the perspective of seeking a fair, just and realistic solution, based on the best interests of the children, something that is paramount according to the 2008 Trafficking Protection Reauthorization Act (TVPRA), which is the alpha (though in the opinion of some, not necessarily the omega) of dealing with this situation.

    The strengths and weaknesses of his article are apparent in its very first sentence:

    "According to Homeland Security Committee Chairman Michael McCaul (R-TX), we are facing and escalating refugee and national security crisis in Texas."

    Refugee crisis, yes. But national security crisis? What exactly is the danger posed by innocent, vulnerable unaccompanied children, hundreds of whom are reportedly 2 years old or under, to America's national security?

    Are the children smuggling weapons or drugs in their diapers? Perhaps Rep. Steve King (R-IA), who calls Dreamers "drug mules", might think so. But no rational observer would.

    The Huffington Post is currently running a video (The Republicans have some horrifying theories about children crossing the border) made up of highly reprehensible and irresponsible accusations by Michele Bachmann and assorted other right wing Congressional extremists to the effect that the children at the US border are bringing in various diseases, drugs, weapons, and "Eastern cults" (in a nation where freedom of religion is part of our Constitution), and that they are "invaders" and "terrorists" who are importing a culture of murder and gang violence into America.

    While I do not by any means attribute this kind of hate, which is reminiscent of the vile anti-Semitic, anti-Italian and other attacks against and Eastern European and Asian immigrants in the first half of the 20th century and latter half of the 19th, not to mention the rantings of the Southern segregationist leading up to the Civil Rights era, to more than a small percentage of the people who want to keep these children out, it would be naive to pretend that this kind of bigotry is entirely absent from the controversy over how to treat these child refugees.

    Why begin what is obviously meant to be an objective and fair proposal by citing a statement that combines, to quote the title of Johann Wolfgang von Goethe's autobiographical work, Dichtung und Wahrheit - Truth and Fiction?

    However, given that the above is Congressman McCaul's statement, not Nolan's, and that merely quoting the statement is not the same as endorsing it, I will move on to the substance of Nolan's proposal without further ado, except to say that it is important to distinguish between reality and blatant anti-immigrant demagoguery when discussing this issue. This is not always so easy to do, no matter how serious and well meant one's views may be, because the two are so closely intertwined in many of the media reports about what can only be called the humanitarian and human rights crisis at the border.

    Nolan discusses the admitted dangers of the trip that these children make northward to reach the US border, something that no one can argue with. He also describes the efforts of the Obama administration to discourage this travel, though it is not clear whether the paramount motivation for this is the safety of the children or the safety of President Obama's political standing. Doubtless both are involved.

    Nolan also quotes in full the Spanish langiage "open" letter (English translation) that DHS Secretary Jeh C. Johnson has issued to the parents of the Central American children fleeing mainly gang-related violence in three countries with among the highest homicide rates in the world.

    The letter ends by warning that "permisos' for staying in the US do not exist, so that the admittedly long and dangerous trip will in all probability be in vain. It is true that "permisos" in the sense of a free pass to stay in the US, do not exist. But access to our justice system, in the sense of the right to a fair hearing before an immigration judge on legitimate asylum claims which, according to a UNHCR report to be discussed in my next post, a large percentage of these children may have, does exist, according to the plain language of the TVPRA.

    Curiously, the right to an asylum hearing before a judge is not mentioned in Secretary Johnson's letter. Maybe it was too difficult to translate into Spanish.

    Nolan then turns to the source of the above rights to a full and fair hearing on asylum claims (or other forms of relief from deportation which may be available). As mentioned above, this means the TVPRA. He states:

    "TVPRA was not intended to apply to this kind of situation. When former President George W. Bush signed it into law on December 23, 2008 [i.e. in the final days of his presidency] he stated that it was intended to enhance measures to combat human trafficking. It is vey unlikely that it would be used to require removal hearings for more than 50,000 unaccompanied alien children before returning them to their native countries."

    This comment raises issues of principles of statutory interpretation, something about which lawyers and judges can often disagree. Therefore, I will mention the principle of statutory interpretation which I was taught while a student at Harvard Law School more than 50 years ago. This principle was quite simple: Read the Statute.

    Admittedly, it may now seem somewhat quaint and old-fashioned. I do not remember learning anything about relying on a presidential signing statement in order to interpret a law, but of course, that was long before the latest Iraq war.

    For anyone who still believes in the above antique method of statutory interpretation, the meaning of the TVPRA, especially Section 235, is clear. Nolan himself summarizes it quite accurately, stating that the law:

    "has made it more difficult to repatriate unaccompanied minors without a formal removal hearing before an immigration judge."

    He also provides a chart showing the exact steps that are required to comply with the TVPRA.

    Nolan also mentions that President Obama wants to amend TVPRA to be able to send the children home more easily, as is allegedly the law regarding children from Mexico (not to mention all of the blond, blue-eyed children who Congress evidently expected to come in as refugees from Scandinavia through the Canadian border).

    But, at least as long as Democrats control the Senate, the chances of amending TVPRA are exactly zero. Nolan, clearly, is among those who would like to see the TVPRA amended so that the children would be denied full court hearings. He argues that this process is too unwieldy because it takes too long, there are not enough immigration judges, and the money to carry out this law is not available. But does this mean that the law should be thrown out, or that it more efforts should be made to carry it out in good faith?

    Nolan also argues that most asylum claims by Central American children based on fear of gang violence would fail in immigration court anyway, citing BIA cases holding that these children do not constitute a "social group", as required by US (and international) asylum law. The latest of these decisions is from 2008; the earliest is from 1987.

    In my July 21 post, I discussed a BIA decision from February 2014, which "clarifies" these earlier decisions, and back away from this rigid view. While the law is still admittedly evolving on this issue, the decisions that Nolan cites are no longer the latest statements of the law concerning this question.

    Moreover, if the children are given the full right to counsel which is obviously contemplated by the TVPRA, and which is arguably required by due process, as the US Supreme Court held in the landmark juvenile court case of Matter of Gault back in 1967, we might very well find that the law of asylum in gang violence related cases will develop quite a bit faster than Nolan evidently anticipates.

    Is it precisely because so many of these children do in fact have legally valid asylum claims that the Obama administration is so anxious to rush them out of the country in a travesty that can only be called kangaroo procedures, without access to lawyers, as described in former Board of Immigration Appeals member Lory Rosenberg's shocking report mentioned in Matt Kolken's July 21 blogging?

    But not to worry, even if these children do have legal rights to stay in the US for a greater or lesser period of time, Nolan argues that there is an alternative to letting them stay here which would still be in their best interests. This is an important carefully thought out, proposal, worthy of the most serious consideration, and with which I respectfully disagree. It will be the subject of my next post.

    Updated 07-22-2014 at 08:53 PM by ImmigrationLawBlogs

  5. Refugee Children Deserve Humane Treatment and Legal Process Pt. 1. By Roger Algase

    Opponents of the Obama administration's immigration policies are escalating their attacks against the president based on his alleged failure to foresee the influx of child refugees fleeing gang violence and other dangerous conditions in three Central American countries: El Salvador, Guatemala and Honduras. See, for example, a July 19, 2014 Washington Post article: Obama aides were warned of brewing border crisis.

    The main point of these attacks is that the administration should have done more to stop these children from attempting to enter the US, and should have made preparations to turn them back much earlier. There is also an obvious, if not as clearly stated, implication that these children represent some kind of danger to the United States, as if their attempts to escape life-threatening conditions in three of the most homicidal countries in the world were somehow equivalent to another Benghazi attack.

    A particular target of this criticism is a 2008 law, signed by President George W. Bush, known as the Trafficking Victims Protection Reauthorization Act (TVPRA) which requires the DHS to turn unaccompanied children from noncontiguous countries (i.e., Mexico - and also for some reason, Canada - not exactly a big source of refugee children) seeking admission at the border over to the the Department of Health and Human Services for processing in which the "best interests of the child" will be taken into account. The TVPRA also requires that each child be given a hearing before an immigration judge regarding his/her rights to asylum or other relief from deportation.

    The above news item also refers to a report by the University of Texas at El Paso's Unaccompanied Alien Children (UAC) project concluding that there have been problems in implementing the protections of the TVPRA. What a surprise! When there is neither the will nor the money to carry out a particular law, of course the law is not going to work as well as intended. But that is not a reason to throw the baby out with the bath water by changing the law, and the above report makes no such recommendation.

    The above provision of the TVPRA is especially infuriating to immigration opponents, who are calling for its repeal and demanding that children from all countries be treated the same way as children from Mexico, whom they mistakenly believe can legally be turned away on the whim of a US Border Patrol officer without any legal rights whatsoever, even though that is far from what the TVPRA actually provides, as I have discussed in my July 16 post.

    Some respected immigration law experts argue that granting the children hearings before an immigration judge is a waste of the government's time and resources, and of little benefit to the children anyway, because few, if any of the children have asylum claims which the immigration courts will recognize. This line of thinking is based in large part on the doctrine that children threatened with gang violence are not members of a particular social group, as required by the asylum laws.

    To be sure, the above highly restrictive view of eligibility for asylum has support in a line of Board of Immigration Appeals (BIA) decisions, as well as some US Circuit Court of Appeals decisions. But this view is now being eroded.

    In a landmark February 7, 2014 decision (Matter of M-E-V-G-), the BIA (with some friendly prodding from the 3rd Circuit Court of Appeals), backed away from its previous rigid views about the definition of a "social group" for asylum purposes, and remanded an asylum petition based on fear of gang violence in Honduras, which it had previously denied, to an immigration judge for further fact finding on this issue. The BIA stated:

    "...the respondent's proposed particular social group has evolved during the pendency of this appeal."

    The BIA also stated:

    "Nevertheless, we emphasize that our holdings in [citations omitted] should not be read as a blanket rejection of all factual scenarios involving gangs."

    Therefore, those who argue that there is no need to provide Central American children with asylum hearings because they will not be successful anyway can no longer look to the BIA for support as easily as might have been possible only a few years ago.

    Donald Kerwin, Executive Director of the New York based Center for Migration Studies (not to be confused with the staunchly anti-immigrant Center for Immigration Studies), states in a June 20 Huffington Post article that, according to a 2012 report by the Vera Institute of Justice, 40 percent of the migrant children who were in the custody of the Office of Refugee Resettlement (ORR, a division of HHS, as required by the TVPRA) were potentially eligible for relief from removal, including for political asylum, special immigrant juvenile visas, for abandoned, abused and neglected children, and non-immigrant visas for victims of human trafficking and survivors of crime. See The Migration of Unaccompanied Children to the United States: Stumbling Toward a Humanitarian Solution.

    It is true that that the same article also states:

    "That said, U.S. Courts have rejected strong asylum claims based on gang-related violence, despite UNHCR guidelines that seem to argue for greater receptivity to these claims."

    But as the BIA case mentioned above points out, the law appears to be evolving in the direction of more openness to asylum claims based on gang violence. Is the reason that immigration opponents are so anxious to change the law in order to deprive these children of a hearing because more and more of the children might win their cases, if given fair access to our justice system (including proper legal representation, as urged in a pending federal district court case in Seattle)?

    For a nation that is based on the rule of law to seek to deny access to legal process to tens of thousands of children at our border who are desperately trying to escape from horrific gang violence which their own governments are unable or unwilling to protect them from shames America's own values and traditions.

    It also makes a mockery of the claim by the restrictionists that they are not opposed to immigration per se, but are only interested in enforcing the immigration laws. But this evidently applies only to enforcing the laws that bar people from coming in to the US or compel them to leave. Their law enforcement zeal diminishes rapidly when the law in question (in this case, TVPRA Section 235), may allow thousands of vulnerable children arriving at the border to stay in the US, or at least to have a fair hearing concerning their right to do so.

    Donald Kerwin offers some rational and humane solutions in another (July 20) Huffington Post article: Why the Central American Children Migrants Need Full Adjudication of Their Protection Claims. I will discuss this article in Part 2 of these comments.

    In addition, the hostility to immigration in general which has so much influence in the movement to deny humanity and justice to refugee children at our border extends far beyond this one issue - which the media are calling the "border crisis" but should more properly be called the "human rights" crisis.

    The same movement to deny legal rights to immigrants in general also affects of the most skilled, educated, immigrants at the other end of the scale. These highly qualified, entrepreneurial, immigrants, with their knowledge of the advanced technologies and business practices in their respective fields, have the greatest benefits to offer our economy and society.

    They seek to come or stay here only through the legal immigration system, but, like the unaccompanied children arriving at our border, are often forced to go elsewhere because of irrational laws, or enforcement policies which deprive them of their rights under existing law.

    POLITICO has a excellent article by Vivek Wadhwa on this subject called: America's Crazy, Upside-Down Immigration System (July 20), from which I quote the final paragraph:

    Comprehensive immigration reform is surely dead, but immigration reform need not be. Smaller pieces of legislation can still make it through the system, and President Obama can still use his executive privilege
    [sic - the correct word is "power", not "privilege"] to clarify policies that presently cause skilled workers to be treated like common criminals by immigration authorities. America's economic prosperity and the human rights of millions are at stake." (Emphasis added.)

    While Wadhwa's article does not mention specifically how the president might use his executive power to grant relief from current laws or policies which force so many talented US-educated entrepreneurs or skilled workers to look for other countries in which to start their businesses or pursue their careers, one good place to begin would be to expand the F-1 practical training program in order to grant work permission to qualified specialty workers whose H-1B petitions were rejected due to the unconscionable visa shortage.

    This could be so easily done that it, arguably, would not even require administration bureaucrats with specialty bachelor degrees to put such a proposal into action!

    The point is that if we want to uphold the rights of skilled immigrants to fair treatment in the form of more H-1B visas, fewer biased and irrational RFE's and petition denials, and an end to unfounded and intimidating fishing expeditions and employer harassment in the name of "compliance", we must also not turn away from recognizing the legal rights of the children at our Southern border. The two cannot be separated.

    Neither can the rights of millions of hard-working, taxpaying, but unauthorized immigrants already in the US, which even Wadhwa's article fails to recognize as being inextricably bound up with those of the highly educated immigrants whom he so eloquently supports.

    Unless immigration supporters are willing to fight for the legal rights of all immigrants, they risk gaining justice and fair treatment under the law for none.
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been helping employment-based and family based immigrants achieve their rights to receive work visas and green cards for more than 30 years. His address is algaselex@gmail.com

    Updated 07-21-2014 at 09:14 AM by ImmigrationLawBlogs

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