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

Rating: 2 votes, 5.00 average.

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.

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

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  1. Nolan Rappaport's Avatar
    Roger is right that the UNHCR has not expressed an interest in the proposal I am making. The proposal is my own idea. Unless UNHCR has read my article, they don't know anything about it. I emailed a link to the article to the UNHCR office in DC, but I do not know if anyone there paid attention to it.

    Roger is right also that UNHCR would rather see the US give asylum to the 50,000 plus children who are already in the United States than see them moved out of a safe haven to a location outside of the United States where they can be processed as refugees.

    The problem is that the kids who stay here and have hearings before an immigration judge are not at all likely to be granted asylum. According to a TRAC report on the outcome of 100,000 cases in which unaccompanied alien children had hearings before an immigration judge through June 30, 2014, relief was granted in only 1% of the cases in which the child appeared without an attorney. The percentage was 9% for kids who did have an attorney. See Table 5. Specific Outcomes for Juvenile Cases in the Immigration Courts. If you want to know why, read Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014).

    Also, I want to emphasize that there is virtually no chance that President Obama's request for $3.7 billions to comply with the provisions of the Trafficking Act will be granted. The summer recess will begin on August 1st, and Congress has made little, if any, progress on putting together a bill to give the President even part of the money he has requested. The republicans had a party conference to find agreement on a funding authorization bill. If they can get enough support, they are likely to introduce a bill that would authorize $1.5 billions but it would gut the trafficking bill provisions for unaccompanied children. And the supporters of such a bill do not have enough support within the republican party to pass it; they need votes from the democrats. See "GOP divided on border proposal" (July 23, 2014).

    The bill they are proposing is summarized Congresswoman Kay Granger (R-TX), who was the chair at this conference. It includes such conditions as, "Amend the Trafficking Victims Protection and Reauthorization Act of 2008 so all unaccompanied minors are treated the same as Mexicans for the purpose of removals." See "Granger Releases Border Crisis Working Group Recommendations" (July 23, 2014).
  2. ImmigrationLawBlogs's Avatar
    Nolan has been kind enough to send me a recent (February, 2014) decision in which the BIA, with only a few cosmetic changes in terminology, essentially stuck to its previoust hard line that victims or potential of gang violence do not constitute a particular social group for purposes of asylum law. Admittedly, this lends support to Nolan's argument that letting the Central American border children stay in the US for asylum hearings (as is required by current law) would do them no good because most of them would lose anyway.

    I do not believe that this latest decision would stand up in federal court (depending on the circuit). If it did stand up, it would indicate that something is drastically wrong with our current asylum law sytem. I will discuss this decision in an upcoming post.

    Roger Algase
    Attorney at Law
    Updated 07-24-2014 at 03:53 PM by ImmigrationLawBlogs
  3. MKolken's Avatar
    It is a better way according to Hillary Clinton: Clinton Would Back Changing Border Law
  4. ImmigrationLawBlogs's Avatar
    And that says a lot about, Hillary, Matt. It also says a lot about other Democrats who pretend to be pro-immigrant but who cave into expediency and take the easy way out at the expense of the most vulnerable of all people seeking safety and protection in the US from one of the worst forms of persecution - children seeking refuge from gang violence.

    After all the effort that has gone into trying to bring about immigration reform in the past 18 months, is this the kind of reform we are going to wind up with? Kicking thousands of innocent children out of the country with no chance to have their day in court and return them to their countries where the gangs rule supreme?

    And if the Democrats are gutless and craven enough to go along with that, the anti-immigrant side already has its knives out for the next item - DACA.

    After the 2012 election, people were saying that the Republicans were in danger of going over the cliff because of their refusal to support immigration reform. But now it is the Democrats who may be going over the cliff, led by the spineless, the gutless, the unprincipled, who are caving in on one of the great moral issues of our time - justice and tolerance for innocent children. What a shameful, what a sad day for America if the TVPRA is gutted just to serve the expediency of a few cowardly Democratic politicians trying to save their own electoral skins.

    Roger Algase
    Attorney at Law
    Updated 07-24-2014 at 08:52 PM by ImmigrationLawBlogs
  5. Nolan Rappaport's Avatar
    An article on Clinton's views is available at,
    I am not surprised that Ms. Clinton favors discretion on whether to apply the trafficking act provisions to this situation. The people who are adhering to the demand for the rights of the children under those provisions might think they are helping the children, but they aren't. I hate to think of how many children will be deported who would have been able to receive refugee status if they had been turned over to the UNHCR for refugee processing.
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