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Home Countries Unprepared To Take Children Deported (Against US Law). By Roger Algase

Rating: 6 votes, 5.00 average.

Update: August 20, 12:05 pm:

i would also like to mention that while there are reasons to have reservations about Nolan Rappaport's proposal to turn unaccompanied border children (UAC) over to the UN for refugee screening in a third country or countries, it is still a step in the right direction and more in keeping with the spirit of TVPRA Section 235(c)(5), discussed at the end of this post, than mass expulsions would be.

Nolan's main fear, from the standpoint of the children's welfare, is evidently that under long standing BIA precedent decisions going back almost 30 years, and which the BIA is now backing away from very slowly, if at all, the overwhelming majority of the children would lose their asylum claims in immigration court and then be deported back to their countries of origin.

But Nolan apparently overlooks a section of the TVPRA which is clearly meant to provide protection to the children against this eventuality by changing these restrictive BIA policies.

Section 235(d)(8) states:

SPECIALIZED NEEDS OF UNACCOMPANIED ALIEN CHILDREN-Applications for asylum and other forms of relief from removal in which an unaccompanied alien child is the pri
sncipal applicant shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both the procedural and substantive aspects of handling unaccompanied alien children's cases. (Emphasis added.)

This provision not merely invites, but directs, the Obama administration to change the restrictive doctrines, especially those relating membership in a particular social group, which have prevented children from being granted asylum in the past based on gang violence or related claims. It is time to enforce this provision, instead of expelling UAC children en masse.

Where are the regulations, Mr. President?

The previously updated version of this post follows:

This post has been updated as of 11:15 am, August 20 in order include a discussion of the effect of TVPRA Section 235(c)(5) on any attempt that is now being made, or might be made in the future by the Obama administration to rush unaccompanied Central American border children back to their countries without first ensuring their safety and welfare on arrival back home.

National Journal reports that Guatemala, Honduras and El Salvador, the three countries which most of the unaccompanied children apprehended at the US border come from, are not well prepared to take them back after they are sent home from the US. See Returned Migrants Face Bleak Future, August 18

http://www.nationaljournal.com/polic...uture-20140818

The NJ writes:

"The US isn't currently deporting unaccompanied minors at a rapid rate, but it's an issue that will come up again in Congress after the August recess. And immigration analysts, nonprofit workers and researchers are concerned.

'Transporting planeloads of kids is just setting the system up for failure', said Amy Thompson, an immigration policy analyst. 'I mean, there's really no system in place now.'
"

The article continues:

"In Honduras, buses filled with families and unaccompanied minors caught in Mexico arrive in the country about 3 times per week, according to Juan Sheenan, Catholic Relief Services country representative in Honduras.

Quickly they're processed. The new arrivals are interviewed. Afterward, some head straight home to their communities; others stay in the shelter for no more than two to three days.

But if the children are sent back in droves, Honduran officials likely won't have the resources to address the return of myriad planes filled with children...

More staffing, medical supplies, food and shelter would be needed, and all that costs money. Claims of potential for abuse or violence of a child is returned to their [sic] home community should be investigated, Sheenan said."

Similar lack of resources also affect children sent back to Guatemala and El Salvador, even though some rudimentary programs now exist.

NJ concludes:

"But in all three countries, more services would be needed to provide a safety net at home if the US begins deporting unaccompanied minors swiftly, and it takes time to establish sustainable programs."

It is understandable that the US needs to protect its borders and enforce its laws. Our political leaders no doubt also need to protect their seats in Congress.

But should not America's immigration policies also take into account the need to protect the lives and welfare of the tens of thousands of children seeking refuge at our border, with or without their families? Is just loading them onto planes and sending them home as fast as possible really a solution?

And a rush to mass deportation of unaccompanied border children would also violate the spirit and intent, as well as the actual provisions of TVPRA Section 235(c)(5), which has the title:

ENSURING THE SAFE REPATRIATION OF CHILDREN

This section provides, inter alia, as follows:

(A)REPATRIATION PILOT PROGRAM- To protect children from trafficking and exploitation, the Secretary of State shall create a pilot program, in conjunction with the Secretary of Health and Human Services and the Secretary of Homeland Security, nongovernmental organizations, and other national and international agencies and experts, to develop and implement best practices to ensure the safe and sustainable repatriation and integration of unaccompanied alien children to their country of nationality or of last habitual residence, including placement with their families, legal guardians, or other sponsoring agencies. (Emphasis added.)

(B) Assessment of Country Conditions - The Secretary of Homeland Security shall consult the Department of State's Country Reports on Human Rights Practices...in assessing whether to repatriate an unaccompanied child to a particular country.

Where is the Subsection (A) pilot program? Are the required Subsection (B) consultations being made prior to deportation?

Therefore, any rush to deport unaccompanied border children back to the three "Northern Triangle" countries of Central America without making sure that they will be safe and properly cared for upon their return would not only be inhuman, but illegal under the TVPRA.

Granted, if Congressional conservatives are successful in gutting the TVPRA, then mass expulsion of border children without regard to the conditions in their home countries might no longer be illegal.

It would merely be inhuman.
____________________________
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family immigration law for more than 30 years. His practice is concentrated in H-1B and O-1 work visas, as well as green cards through PERM labor certification, extraordinary ability and opposite or same sex marriage, as well as other immigration and citizenship cases. His email address is algaselex@gmail.com


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Updated 09-22-2014 at 03:43 PM by ImmigrationLawBlogs

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Comments

  1. Nolan Rappaport's Avatar
    Roger quotes the following provision:

    Section 235(d)(8) states: SPECIALIZED NEEDS OF UNACCOMPANIED ALIEN CHILDREN-Applications for asylum and other forms of relief from removal in which an unaccompanied alien child is the prisncipal applicant shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both the procedural and substantive aspects of handling unaccompanied alien children's cases. (Emphasis added.)

    This provision does not change the statutory asylum eligibility requirements. The children still have to establish persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. It just requires EOIR to modify the "proceedings" to ensure that the children have a fair chance to meet that burden of proof, i.e., how unaccompanied alien children's cases are handled. They will still lose if they can't satisfy Board asylum precedents.
  2. Nolan Rappaport's Avatar
    I agree with Roger that the Central American Countries haven't changed since the children left. I don't want to just send the children back, but that's exactly what will happen to them if they stay here for the asylum hearing Roger wants them to have. With very few exceptions, their asylum applications will be denied and they will be deported back to their home countries with no arrangements having been made for their safety when they are home again.
  3. ImmigrationLawBlogs's Avatar
    Nolan's comment overlooks the words "substantive aspect" in the above statute. It is not just about proceedings.

    Nor is there any need to change the asylum law itself, as Nolan suggests, for the border children to succeed in their claims. All that would be needed would be for the AG to issue regulations changing the BIA's interpretation of the asylum law, especially with regard to the BIA's definition of "social group" (which the BIA is having increasing problems upholding anyway, due to harsh criticism from some federal circuit courts).

    I owe this suggestion to Nolan himself, who has been kind enough to point it out in a personal communication to me.

    It would only take a few strokes of the AG's pen to reverse three decades of BIA obstruction on this point. If AG Holder is too tied up in Ferguson to do this and does not have sufficient staff, I would be glad to offer my services.

    But I think that Nolan, who has more drafting experience than almost anyone else in the immigration law field today, could do a much better job of this himself.

    Roger Algase
    Attorney at Law
    Updated 08-20-2014 at 12:35 PM by ImmigrationLawBlogs
  4. MKolken's Avatar
    Quote Originally Posted by Nolan Rappaport
    I don't want to just send the children back, but that's exactly what will happen to them if they stay here for the asylum hearing Roger wants them to have. With very few exceptions, their asylum applications will be denied and they will be deported back to their home countries with no arrangements having been made for their safety when they are home again.
    Not if they have proper representation.

    From TRAC Immigration:

    • Outcome if attorney present. In almost half (47%) of the cases in which the child was represented, the court allowed the child to remain in the United States. The child was ordered removed in slightly more than one in four (28%) of these cases. And in the remaining quarter (26%) the judge entered a "voluntary departure" (VD) order. (While with a VD order the child is required to leave the country, the child avoids many of the more severe legal consequences of a removal order.)
    • Outcome if no attorney. Where the child appeared alone without representation, nine out of ten children were ordered deported — 77 percent through the entry of a removal order, and 13 percent with a VD order. One in ten (10%) were allowed to remain in the country.
  5. Nolan Rappaport's Avatar
    I was referring to getting asylum from an immigration judge at a hearing. Look at Table 5 for the statistics on asylum grants in removal proceedings. Without counsel, 1%; with, 9%. You are referring to deals cut outside of the hearing room. I don't know how to use that information as a basis for predicting future outcomes. The number of kids needed such deals has gone way up.
  6. Nolan Rappaport's Avatar
    I appreciate Roger's confidence in my drafting ability. I would love to do it.

    As for the AG's powers, I would rather see him change Board precedent by writing a decision reversing it. He could do it this afternoon. But I am not sure he could go as far as Roger would like to see him go. Although he can do anything he wants with the Board decisions, he is bound by federal court decisions on asylum law.

    Another course he could take would be to replace the Board members who have made it so difficult to establish eligibility for asylum. Former Attorney General Ashcroft removed 5 or 6 Board members...who happened to be the most liberal members on the Board. Actually, it would be a good time for Attorney General Holder to do it. When Ashcroft removed Board members, he made most of them immigration judges. Former Board Chairman Paul Schmidt, for instance, became an immigration judge. There is a desperate need right now for more immigration judges to handle the increased case load that resulted from the unaccompanied alien child crisis. Add more immigration judges quickly by making the current crop of Board members immigration judges, and then put new, "right-thinking" members in their places. Or is it "left-thinking"? They wouldn't need a training program. Just give them robes and tell them where their courts are located.
  7. ImmigrationLawBlogs's Avatar
    With regard to Matt's comment, I don't usually argue on Nolan's side of the UAC asylum law debate, but he is correct in pointing out that there is a long line of BIA decisions on the social group issue which could make it an uphill battle for many, if not nearly all of the border children to prevail in immigration court on gang violence-related asylum claims.

    Definitely, proper legal representation would help in dealing with this "weak" point in some cases, but I agree with Nolan that the BIA's policy on this issue will remain as an obstacle until changed by an AG decision or regulations or overruled by most or all, of the federal circuit courts which have dealt with this issue (or maybe even the Supreme Court).

    It is important to put pressure on the AG to issue a new decision or regulations reversing the BIA's unreasonably narrow, if not irrational, decisions on this point.

    Roger Algase
    Attorney at Law
    Updated 08-20-2014 at 01:35 PM by ImmigrationLawBlogs
  8. Nolan Rappaport's Avatar
    In addition to applying pressure on Attorney General Holder, you can tell the House Immigration Subcommittee how you feel about this issue.

    The Chairman is Rep. Trey Gowdy
    1404 Longworth HOB
    Washington, DC 20515
    Phone: (202) 225-6030
    Fax: (202) 226-1177

    and the Ranking Member is Zoe Lofgren.
    1401 Longworth House Office Building
    Washington, D.C. 20515
    Phone (202) 225-3072
  9. MKolken's Avatar
    Quote Originally Posted by Nolan Rappaport
    I was referring to getting asylum from an immigration judge at a hearing. Look at Table 5 for the statistics on asylum grants in removal proceedings. Without counsel, 1%; with, 9%. You are referring to deals cut outside of the hearing room. I don't know how to use that information as a basis for predicting future outcomes. The number of kids needed such deals has gone way up.
    Representation affords these kids a fair opportunity to determine if other relief from removal is available besides asylum... And any deal that results in unaccompanied minors not being returned to a country where they face a prospect of death is a pretty good deal. At least in my book.

    Quote Originally Posted by ImmigrationLawBlogs
    With regard to Matt's comment, I don't usually argue on Nolan's side of the UAC asylum law debate, but he is correct in pointing out that there is a long line of BIA decisions on the social group issue which could make it an uphill battle for many, if not nearly all of the border children to prevail in immigration court on gang violence-related asylum claims.

    Definitely, proper legal representation would help in dealing with this "weak" point in some cases, but I agree with Nolan that the BIA's policy on this issue will remain as an obstacle until changed by an AG decision or regulations or overruled by most or all, of the federal circuit courts which have dealt with this issue (or maybe even the Supreme Court).

    It is important to put pressure on the AG to issue a new decision or regulations reversing the BIA's unreasonably narrow, if not irrational, decisions on this point.

    Roger Algase
    Attorney at Law
    I've just successfully litigated the social group issue before an Immigration Judge with a 90% asylum denial rate, and the Department folded on appeal, probably to prevent the issuance of precedent that would blow the door open to these type of claims.

    “Immigration Law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold” – Former INS Spokesperson
  10. ImmigrationLawBlogs's Avatar
    Matt, i am glad to hear about your result in immigration court on the social group issue. I have no doubt that the BIA decisions in this area are on their way out as precedents, especially after reading some recent circuit court decisions, but as Nolan says (and I agree) this may take some time. I don't know if DHS will fold on appeal in every asylum case involving social groups.

    I quite agree with your final sentence and will do my best to help my clients understand this golden point as well.

    Roger Algase
    Attorney at Law
  11. Nolan rappaport's Avatar
    It's true that competent counsel would improve the likihood of out of court settlement. But with the volume involved and the administrations rush to move these cases, it isn't likely that many of the children will be represented. And when it becomes apparent that more than 90 per cent of the cases that go to court with lawyers are lost, the enthusiasm for pro bono work will go down. One more thought. In previous cases, the judges involved weren't specializing in gang violence based persecution claims. Now the judges will be specializing in such cases and EOIR will see to it that they are very familiar with pertinent board precedent.
  12. ImmigrationLawBlogs's Avatar
    The law is clear: Both INA Section 292 and TVPRA Section 235(c)(5) provide that UAC have the right to counsel (if they choose tp and can find an attorney willing to represent them)

    This right does not depend on whether or not they are likely to win their cases in immigration court. Saying that having a lawyer or a right to a fair hearing is unnecessary because the children, allegedly, might be likely likely to lose their cases anyway would be like pointing a dagger at the heart of America's entire justice system, as well as its democracy.

    On this point, I respectfully part company with Nolan.

    Moreover, how many of these children are competent to waive their right to an attorney? Granted, the government does not have to pay for these attorneys, but the government does have to let them into the buildings where the children are being held and the hearings are taking place.

    In centers like Artesia, New Mexico, this provision of law is being honored only in the breach, according to reports which have appeared on this site and elsewhere.

    That is the sign of a lawless, out of control administration which seems more interested in kowtowing to the Tea Party than in following the same law which it claims to be enforcing by rushing the children out of the US and back to the same dangerous conditions which they sought to escape by coming to the US in the first place.

    If the dissenting Justices in Fong Yue Ting back in 1893 were around to see this travesty in 2014, they would no doubt be warning that America is on the road to despotism by denying the children their statutory, not to mention constitutionally protected due process right.to legal representation.

    They might well say the same thing about the BIA's 30-year history of distorting the meaning of "social group" in order to deny legitimate asylum cases involving gang violence and other similar types of persecution.

    One should read and re-read the dissenting opinions in Fong Yue Ting. If they had been majority opinions instead, America's entire immigration legal history might have been based much more on the ideals of our Constitution, rather than on catering to the popular prejudices of the time, including today.

    Roger Algase
    Attorney at Law
    Updated 08-20-2014 at 08:53 PM by ImmigrationLawBlogs
  13. Retired INS's Avatar
    How long is it taking to get passports for unaccompanied minors? To my knowledge, Mexico (and maybe Canada) is the only country that will take back their citizens without proof of their identity and nationality. As an INS agent, I could walk deportees back across the border. Those going to other countries require a passport and we sometimes wait months to get the passport.

    Does this affect our policy toward unaccompanied minors?
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