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Posted by on Nov 21, 2014 in Legal Discourse | 0 comments

Cute, Cuddly and Unwelcome: Children and America’s Border Crisis

By: Edith Hinson

“The face of today’s youth is changing.”

Sure, that’s an epithet that every generation seems to say about their younger cohorts. But today, perhaps, it is truer than ever. According to Customs and Border Patrol—the agency responsible for apprehending individuals attempting to cross the border—at least 66,000 unaccompanied minors entered the United States from October 1, 2013 to October 1, 2014. That’s nearly double from the same time period the year prior.  Even though 66,000 may be a drop in the bucket of the estimated 73.6 million American children in 2013, the fact that the rate of arrival is on an exponential rise means that not only is the face of today’s youth going to change, but so is their race, religion, culture, and heritage.

Who are “Unaccompanied Minors”?

Immigrants age 17 and under who arrive into the U.S. without guardianship and legal status are called “Unaccompanied Minors.” While the growth in the number of unaccompanied minors is alarming, the population itself presents a relatively small portion of all undocumented immigrants present in the United States—estimated today to be between 11 and 12 million.

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So then what’s the Big Fuss about Unaccompanied Minors?

In a phrase: competing commitments. An influx of population, no matter their age or their source, can strap an area of resources—land, food, water, law enforcement, medical care, education, etc. With nearly 70,000 immigrant children flocking to small towns along the border and beyond, it is easy to see how resources might quickly and unexpectedly get tapped.

Herein lies the beauty of sovereignty: as a sovereign nation, America has a right to exclude non-citizens from our territory without more justification than the mere fact that the individual is a non-citizen. It isn’t necessary that the individual be a criminal, or a drug trafficker, or unsavory in any way—the mere fact that a person is not a U.S. citizen gives the U.S. government the unequivocal right to exclude her from the U.S., which makes sense when you look to the public policy behind the concept of sovereignty. Among other rationales, the power of sovereignty endows the sovereign body (in this case, the U.S.) with the right to allocate and protect those limited resources which fall within its own borders. After all, we need those! For ourselves, our families, our neighbors. In other words, we protect our own … Right?2

Us vs. Them, or Us and Them

Well… yes, and no. While the principle of sovereignty is crucial to the way major governments have operated since time immemorial, today, membership in the global community and recognition of a world economy is the new reality. Enter the U.N. As a member of the United Nations, the U.S. is bound to certain international obligations and privileges, which run parallel to our sovereign obligations and privileges. One of these obligations involves the U.N. Convention Relating to the Status of Refugees (“the Refugee Convention”). In pertinent part, the Refugee Convention means that we as a nation are compelled to provide refuge to those individuals who find themselves within our border, and demonstrate a well-founded fear of official persecution in their home-country based on their membership in a protected class (i.e. being in a religious or political minority, being a criminal informant, a rape victim etc.). This is, in simple terms, an “asylum” case—being in the U.S., able to prove you are from somewhere else, and are legitimately afraid to return there.

U.N. Obligations in Practice

So what does that all really mean? It means that contrary to our sovereign nature as a nation, we are obligated to hold on to some of those folks that we are otherwise entitled to kick out, to see if they qualify to stay here pursuant to the Refugee Convention. So technically, Border Agents on the ground are not supposed to send an immigrant back who might have a claim for asylum. Such an agent violates the Refugee Convention if he turns away an asylum-seeker without giving her an opportunity to prove her asylum case.

So, are Border Patrol agents supposed to give a full-blown trial to each person entering the United States who says they’re afraid to go back home? No, but a right to a screening interview with an Immigration Official to test the legitimacy of the claim is what’s required. So what does this have to do with Unaccompanied Minors?

Deteriorating Conditions in Migrants’ Home Countries

The majority of Unaccompanied Minors are coming from Honduras, El Salvador, Guatemala and Mexico. In those countries, economic and social conditions have been deteriorating since at least the 1980’s. Between the Guatemalan genocide, the El Salvadorian civil war, Honduran violence, and Mexican corruption, official persecution of vulnerable groups in Central America is rampant. Add those factors to the inferior or non-existent health care and education systems, in addition to a near-total lack of birth control and family planning in some areas, and what you have is a large population of young individuals who are not getting their most basic needs met. So, for them, there’s nowhere to go but up. Up the continent, that is.3

What’s the Point?

Hordes of immigrants showing up at the U.S. border who all allege asylum is a problem that will inundate the system. We can’t be expected to set up full-fledged trials on the southern border for every would-be migrant who says they can’t go home. But unaccompanied minors are a particularly sympathetic population: young, innocent, scared, alone, helpless. And what does it look like when agents in military regalia turn away such a sympathetic lot? Well, it looks bad. Which is why the problem of unaccompanied minors, relative to the whole, is not huge, but is getting widespread attention. It’s a cause that most people have a heart for, one way or the other.

What’s Being Done?

The current answer is trying to temporarily place the unaccompanied minors with guardians. And for those kids who have an aunt or cousin or grandmother here, that’s not too huge of a problem. But for those that don’t, they are caught in the crosshairs of feeling unwelcome no matter where they go. Back home, no one can help them; and here, no one wants to help them. In fact, citizens of cities across the U.S. have staged protests against the bussing of unaccompanied minors into their cities seeking temporary guardianship while their asylum claim is adjudicated. Additionally, new youth detention facilities are being set up in order to house these minors during their litigation processes; but, these centers are criticized as being overcrowded and prison-like—in fact, many are run by private prison corporations and some are former prisons.4

However, the sympathetic nature of the population is not totally lost. The President has recently committed millions of dollars to providing some of these children with lawyers, which hopefully will expedite the litigation process and provide a better assurance of justice; and an alternative avenue to relief is available to some unaccompanied minors via “Special Immigrant Juvenile Status.” But until the problems in the home countries are addressed, we are likely to have a recurring but adorable problem of chubby-cheeked babes arriving on our border who just want a safe place to go.

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