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

Rating: 5 votes, 5.00 average.

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










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

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Comments

  1. Nolan Rappaport's Avatar
    I am concerned about what is in the best interests of these children, not with their rights under the Trafficking Act provisions. It's far from a certainty that many of them would get asylum if they appear before an immigration judge in removal proceedings. See the TRAC report on what happened to the 100,000 unaccompanied children who have appeared before a judge in removal proceedings as of the end of June 2014. http://trac.syr.edu/immigration/reports/359/ Moreover, the Administration needs $3.7 billions to comply with the Trafficking Act provisions for unaccompanied alien children, and that amount is likely to rise if predictions about tens of thousands of additional children are correct. But the republicans don't want to give it to him. We can complain about the republican refusal to help these children, but complaints didn't get them to go along with the Senate immigration reform bill, S744, and I don't think complaints will help in this situation either.

    i have written an article in which I propose an alternative that should be acceptable to everyone who wants what is best for the children. My proposal is to let the UNHCR process them for refugee status and provide whatever help it can for the ones who though not eligible for such status nevertheless are in need of international protection. I submit that doing it that way would help more children than following the Trafficking Act provisions would -- assuming a miracle happens and the republicans provide the funds the Administration needs to comply with those provisions. See my article for details if you are interested in considering alternatives.

    Is There A Better Way? - Meeting the Challenge of Unaccompanied Alien Children at the Southwest Border
    http://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2014/07/10/nolan-rappaport-is-there-a-better- way.aspx
  2. Nolan Rappaport's Avatar
    The citation for my article was cut off in my post above. If it happens again, copy and past the url deleting any spaces in the cite.

    http://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2014/07/10/nolan-rappaport-is-there-a-better-way.aspx
  3. Harry DeMell's Avatar
    What will become of these children if they are not sent back? Roger: Will you adopt several so they can remain or will you confirm my stereotype of liberals and demand that someone else do what you think is right and someone else be taxed to do it?
  4. ImmigrationLawBlogs's Avatar
    I am honored that two distinguished legal scholars have taken the time to read and to reply to my comments. Nevertheless, we have a law in place that was meant not only to give these children their day in court, but also to protect their best interests. Why don't we give this law a chance to work instead of rushing to judgment regarding its effectiveness?

    Roger Algase
    Attorney at Law
  5. Nolan Rappaport's Avatar
    Ordinarily, I would agree with Roger's reasoning. The problem in this situation is that the Administration needs $4.7 billions to carry out the instructions of the Trafficking Act unaccompanied alien children provisions, and more if more kids come, and the Republicans are refusing to authorize the funds unless the Dems agree to waive the Trafficking Act hearing requirement. So the test to see if the provisions will work as intended isn't going to happen. Meanwhile, the 50,000 kids from Central America are being allowed to stay, and this will result in more unaccompanied children making the perilous trip to the US from Central America. In the end, most of them will join the ranks of the 11 plus million undocumented aliens living in the US. In contrast, the UNHCR can help the kids as soon as they leave the US and go to a safe, temporary location for refugee processing. They have studied the Central American unaccompanied alien children situation and developed a ten-point plan for helping the kids. This is explained in more detail in my article.

    Which is more important, doing what is best for the kids or holding out for their rights under the Trafficking Act provisions, which, incidentally, was never intended to apply to this kind of situation?
  6. ImmigrationLawBlogs's Avatar
    It would be interesting to see what the UN itself, in whose expertise in child refugee matters Nolan has so much faith, recommends. I have not seen any UN study or report recommending that these children be denied entry to the US and turned over to UN custody.

    There is a UN report dealing with Central America - "Children on the Run." I do not find any support for Nolan's proposal in that report. Am I missing something, or is there some other UN study or report that Nolan can point to in support of his proposal?

    As for saying that the TVPRA was never intended to provide court hearings and other protections for unaccompanied children, I have to admit that I graduated from law school more than half a century ago, so what I was taught may be admittedly old-fashioned and out of date.

    This was that if you want to know what the intention of a statute is, you read the statute. Maybe this quaint idea has changed over time, but if so, I am not aware of it.

    Sections 235 of the TVPRA is not all that complicated. Any first year law student can understand it. So can any Border Patrol agent.

    Roger Algase
    Attorney at Law
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