One of the clients of Kids in Need of Defense, Angela, with her KIND attorney, Shanti Martin. (Photo courtesy of Kids in Need of Defense)

Since Fiscal Year 2012, the number of unaccompanied immigrant children seeking refuge in the U.S. has drastically increased with around 68,000 coming from Mexico and Central America alone in Fiscal Year 2014 (10 times the historic average), yet no new legislation is being considered by Congress to account for this dramatic influx of young asylum-seekers, according to one child advocacy organization called Kids In Need of Defense (KIND).

This increase is mainly due to large numbers of desperate children coming to the U.S. from Mexico and Central America to seek protection from gang-related, sexual or gender-based violence, according to Communications Director for the KIND organization, Megan McKenna.

“We are seeing more and more of these gang cases where kids are being targeted, boys and girls, where the gang is threatening the child unless the child joins the gang … . We’ve heard stories of close family members being killed by the gang and the gang essentially saying ‘you’re next,’” McKenna said. “And, you know, there’s no protection from these gangs, there’s no state protection, you know, the police either can’t or won’t. We’ve also heard stories of young girls being kidnapped and raped.”

KIND is a nonprofit organization based in Washington D.C. that helps children from 70 countries who come to the U.S. alone by providing them with pro bono legal services and advocating for their best interest in the courtroom, on Capitol Hill and in their home countries.

One of KIND’s clients, Liliana, was only in junior high school when she decided to leave her home in El Salvador to escape death threats she was receiving from local gang members.

“They told me I couldn’t enter my school building ever again,” Liliana said in a video for KIND where she told the story of her immigration to the U.S. “I didn’t feel safe because everyone lived with the same fear of being killed one day by the gangs. When I would walk along the street, I had the feeling that someone was going to come up behind me and hurt me.”

In recent years, gang violence has been on the rise in El Salvador, Guatemala and Honduras. According to an article published in Washington D.C.-based Foreign Policy, Mara Salvatrucha or MS-13, a vicious international gang that originated in Los Angeles, Calif., and Barrio, 18 gangs have transformed these Central American countries into a nightmare of violence, “… including beheadings, dismemberment and systematic rape … .”

According to the Unaccompanied Children Resource Center, this led to a 77 percent increase in the number of unaccompanied immigrant children from 2013-14.

McKenna said that the threat of violence, sexual abuse and even death coming from these types of gangs has forced many parents to make the difficult decision to send their children with smugglers to make the perilous journey to America to live with relatives or family friends.

“Imagine you’re in this situation, you know, you’re in your country and your child is in danger and you feel that you have to get your child, with complete strangers, to a country far away where you don’t even know what’s going to happen to them,” McKenna said. “The level of fear, you know, as anyone who is a parent can imagine, it’s a heart-wrenching decision to have to make.”

McKenna said that the KIND organization has heard many stories from their clients of the physical, emotional and sexual abuse that they experienced at the hands of self-serving smugglers. Children are transported long distances through foreign countries, often in extreme heat.

These smugglers charge parents absurd amounts of money to transport their child — from $4,000-$10,000 — and often demand more money after the parent has already paid, according to an article published by Missouri-based Columbia Daily Tribune.

In June of 2014, the Department of Homeland Security issued a press release from Secretary of the USDHS, Jeh Johnson, titled, “An Open Letter to the Parents of Children Crossing our Southwest Border” which aimed to dissuade Mexican and Central American parents from sending their children to the U.S. illegally.

“In the hands of smugglers, many children are traumatized and psychologically abused by their journey, or worse, beaten, starved, sexually assaulted or sold into the sex trade; they are exposed to psychological abuse at the hands of criminals,” Johnson said in the letter.

McKenna said that they have heard stories of girls that will bring birth control and other contraceptives with them when they leave home in anticipation of being sexually assaulted on the way.

Although the risks are extremely high for children that decide to embark on the illegal journey to the U.S., they are still preferable to the risks associated with staying in their home countries.

“To the parents of these children I have one simple message: Sending your child to travel illegally into the United States is not the solution,” Johnson wrote in his letter.

Unfortunately, there is no real way for these children to come to the U.S. legally either.

McKenna said that one legal pathway for some immigrant children is the Central American Minors program or CAM which offers refugee protection to children from Guatemala, El Salvador and Honduras but only if they have a parent living in the U.S. with lawful status.

“So many kids can’t apply for that program because of that requirement. The program kind of just started and thousands of kids have already applied, but a small percentage, in comparison, will actually get refugee protection,” McKenna said. “Humanitarian parole is the other form which does not necessarily lead to citizenship either.”

When unaccompanied children arrive at the border, they are often immediately apprehended by U.S. Customs and Border Patrol (CBP) officials and sent to immigration courts around the country to begin their “removal proceedings” for entering the country illegally, according to the Unaccompanied Children Resource Center.

According to Johnson’s letter, anyone caught trying to cross the border illegally is considered to be a priority for removal from the country by U.S. Immigration and Customs Enforcement (ICE) officials, regardless of age.

The responsibility of caring for the child during their proceedings falls into the hands of the U.S. Health and Human Services’ Office of Refugee Resettlement (ORR), according to an ORR representative. If possible, children are sent to live with relatives or other potential guardians they may have in the U.S. Otherwise, they are sent to shelters and detention centers to await their verdicts.

“These are children, first and foremost, and as citizens of the United States I would hope that our priority would be the protection of these children regardless of where they’re from but, unfortunately, that hasn’t necessarily been the case,” McKenna said about her work with KIND.

KIND is one of many agencies that provide discounted or pro bono legal services for immigrant children in need. McKenna said that one of the biggest challenges facing these children who find themselves swept up into the U.S. immigration court system is that they are not automatically afforded due process.

Due process is a basic right in the U.S. that is afforded to even the worst criminals, yet it is not guaranteed for children faced with charges of illegal immigration, which is considered civil law, not criminal law. McKenna said that some of these children come to the U.S. unaccompanied at very young ages, even as toddlers. These children and their parents often have no knowledge of the different types of relief programs that may be available to someone in their particular situation, McKenna said.

Sen. Harry Reid (D-Nevada) recently introduced a bill called the “Fair Day in Court for Kids Act,” alongside Sens. Dick Durbin (D-Illinois), Patty Murray (D-Washington), Patrick Leahy (D-Vermont), and Bob Menendez (D-New Jersey), which would provide unaccompanied minors and other groups of especially vulnerable immigrants with legal services during their deportation cases.

According to KIND, 70 percent of unaccompanied immigrant children are not provided a government lawyer and are left to navigate the court system alone; a system that is confusing for adults much less children, many of whom may not speak English. McKenna said that KIND works hard to pair these children with volunteer attorneys through partnerships with legal practices and law schools around the country and provides attorneys with the training and mentorship necessary to represent their clients to the best of their abilities.

The Young Center, based at DePaul University in Chicago, is another organization that provides pro bono legal help to unaccompanied immigrant children as well as other forms of child advocacy.

Associate Director for The Young Center for Immigrant Children’s Rights, Elizabeth Frankel, said that children are not entitled to counsel at government expense and the majority of immigrant children cannot afford a lawyer on their own. Frankel said that the government helps facilitate pro bono representation for some children; however, many children still lack legal representation.

According to the Unaccompanied Children Resource Center, 47 percent of children with a lawyer end up winning their deportation cases, compared to only 10 percent of children who are forced to appear in court alone.

McKenna said that Central American children often do not have a lot of applicable legal options to avoid deportation as there are only a handful of special relief options for young asylum seekers from these regions.

Two of these relief options are the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parent-Accountability (DAPA) executive orders issued by President Obama in 2012. DACA defers the deportation of minors who came into the U.S. when they were under the age of 16 but only if they had been living in the U.S. for at least five years, beginning in June of 2007. DAPA defers the deportation of parents who have been living in the U.S. since 2010 and have children who are citizens or lawful permanent residents in the U.S. In both cases, the withholding of the immigrant’s removal is only temporary and then they can still be deported and the child/parent must meet the timeline specified by the orders.

McKenna said that most of these kinds of relief options have specific deadlines or windows of time for when the child must have entered the U.S. in order to be eligible, so new or recent arrivals do not benefit.

Johnson wrote in his letter to Mexican and Central American parents, “So, let me be clear: There is no path to deferred action or citizenship, or one being contemplated by Congress, for a child who crosses our border illegally today.”

McKenna said that oftentimes the best that an immigrant child can hope for is temporary relief from the threat of deportation back to their home country.

“There’s another form of protection called Special Immigrant Juvenile status for kids who were abused, abandoned or neglected by their parents,” Frankel said. “But depending on the jurisdiction that can be challenging to obtain in certain places.”

Frankel said that immigrant children can also apply for prosecutorial discretion where Immigration and Customs Enforcement agrees to exercise its discretion not to pursue removal from the United States, but this type of protection has become increasingly rare. Even if prosecutorial discretion is granted, there is no pathway to legal citizenship for the child and their deportation case can be reopened at any time.

McKenna and Frankel both said that even though U.S. immigration law allows asylum in some cases for persons threatened with persecution in their home countries, these children are often denied general asylum because the violence in Central America is not considered to be severe enough.

“There’s been a lack of understanding of the level of violence in Central America and the recognition that many of these kids do rise to the level of international protection as a refugee or as an asylum seeker due to the violence,” McKenna said. “… We need more education of the adjudicators on the conditions in the home country and how dangerous it is and how [the kids] cannot go back to these conditions because their lives are truly at risk.”

Frankel said that some of these kids fall through the cracks of our country’s asylum laws because the laws were not created with children in mind.

“There are some laws in place to try to protect kids, but I would say that there aren’t enough forms of humanitarian relief to cover all kids, particularly because the asylum laws were designed for adults and it can be difficult for a child to meet that standard,” Frankel said.

McKenna said that the lack of relief available to these children is not because U.S. immigration officials and immigration court judges lack sympathy for their struggles but, rather, the problem lies in the way that our immigration system is structured in the U.S.

Immigration courts across the U.S. are backlogged with cases of unaccompanied minors seeking asylum with limited options to offer them. According to the Unaccompanied Children Resource Center, today there are more than 400,000 unaccompanied children cases pending in U.S. immigration courts.

The need for comprehensive immigration reform to allow for a legal route to lawful status for these children is clear, but Frankel said that under the Obama administration, Congress has been unable to reach an agreement in order to pass comprehensive immigration reform.

There have been a number of proposed immigration bills that would help unaccompanied minors such as the Fair Day in Court for Kids Act as well as the Refugee Protection Act and the Secure the Northern Triangle Act, McKenna said. But there have also been bills introduced in recent years that look to further limit the relief opportunities available to immigrant children such as the Asylum Reform Border Protection Act HR 1153 and the Child Protection Act HR 1149.

“A big part of the problem is that there’s this fear that if we grant asylum to someone because the gangs are recruiting them then it’s going to open the floodgates, meaning that everyone can then come to the U.S. to seek asylum. But that point of view doesn’t account for what’s actually happening in Central America,” Frankel said. “Yes, the gang violence is rampant but they are targeting certain kids, they’re targeting kids who are particularly vulnerable often because they lack familial protection … So granting protection to this group really isn’t going to open the door to everyone else, it’s going to open the door for people who truly need that protection.”

To hear some of these unaccompanied immigrant children’s stories told firsthand, visit KIND’s website at: https://supportkind.org/stories/category/children/.

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— How the U.S. has handled the unaccompanied minor immigration crisis  —