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The Migration of Unaccompanied Children to the United States: Stumbling Towards a Humanitarian Solution

Members of Congress and polarizing media figures rarely forego the opportunity to offer facile, politically-driven "solutions" to complex social and human problems, and this crisis has been no exception.
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The crisis in unaccompanied migrant children has been building for years. Its roots have been visible in the projected four-fold increase between FY 2011 and FY 2014 in arrests of children by border officials; the high murder rates in Honduras, Guatemala, El Salvador, and Mexico; the low prosecution rates for murders and violent crime; the painful separation of parents from their children; astounding levels of domestic violence in sending communities; poverty and lack of opportunity; and systematic predation on youth by criminal enterprises. It has culminated in the painful calculation by growing numbers of parents, grandparents and other caregivers that it is safer for young people to make the extraordinarily dangerous trip to the United States than to remain at home.

Members of Congress and polarizing media figures rarely forego the opportunity to offer facile, politically-driven "solutions" to complex social and human problems, and this crisis has been no exception. However, we do not yet know the mix of policy, operational and legal responses that will be needed to resolve this situation in a way that vindicates rights, respects the rule-of-law, and protects those in need. Three overarching considerations, however, should be taken into account in working toward an appropriate set of responses.

First, the Obama administration needs to develop a strong and coherent approach to the conditions that are driving unaccompanied minors, pregnant women, and women with young children to migrate in record numbers. The creation of an inter-agency Unified Coordinating Group, directed by the Federal Emergency Management Agency, represents a good (if belated) start. However, the group's mandate extends only to "unaccompanied alien children," not to the influx of single parents from Central America.

Moreover, it speaks only to the crisis in the United States. Yet it is impossible to imagine a long-term solution that does not tackle the very difficult rule-of-law, criminal impunity, public corruption, youth unemployment and development issues in sending communities, as well as the extraordinarily high rates of killing, rape and abuse suffered by migrants in transit. Honduras ignominiously leads the world in intentional killings per 100,000 persons, with four times the rate of Mexico. The homicide rate in Guatemala City substantially exceeds the Honduran national rate. If these and other conditions persist, young people and single parents will continue to migrate, despite the manifest dangers and possibility of failure.

The U.S. Department of State has made it a priority to strengthen the nation's diplomatic, development and resettlement response to six protracted refugee situations. The United States should make a similar commitment to migrant sending communities in Central America and Mexico. Given the $2.28 billion cost to the United States to care for unaccompanied immigrant minors this year, a substantial investment in improving conditions in Central American and Mexico may well be cost-effective.

Second, the crisis highlights deficiencies in the U.S. enforcement system, legal immigration policies, and approach to the unauthorized. However, it mostly implicates a different set of protection policies and systems than the widely-recognized pillars of "comprehensive" immigration reform. The United Nations High Commissioner for Refugees (UNHCR) found that 58 percent of 404 migrant children, who entered the country on or after October 2011, raised at least one "protection" concern, including the need for protection from drug cartels, gangs and state actors (48 percent); domestic abuse by caretakers (22 percent); and recruitment into human smuggling rings (38 percent in Mexico, but not elsewhere).

A 2012 report by the Vera Institute of Justice found that 40 percent of migrant children in the custody of the Office of Refugee Resettlement (ORR) 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. 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 cases. An unknown, but likely substantial number of migrant children have U.S. resident parents in temporary protected status (TPS), but TPS is not available to close family members of recipients.

The availability of a secure, legal route to the United States -- even if granted in only extreme cases -- could substantially alleviate the pressure to migrate and influence the calculation on undertaking such a dangerous journey. Yet the Administration has extremely limited options for admitting non-refugees who are at substantial risk in their home or host nations. The Secretary of the Department of Homeland Security (DHS) can "parole" persons into the country for limited periods on a case-by-case basis for "urgent humanitarian reasons." DHS should expand its use of parole in cases of imperiled youth, particularly those with parents in the United States. In addition, Congress should:

• liberalize the TPS program so that beneficiaries can petition for their immediate family members to join them;
• create a new non-immigrant "protection" visa for particularly vulnerable and at-risk individuals, like children at extreme risk of violence; and
• substantially increase funding for the U.S. immigration courts.

On the latter point, the immigration court system labors under a record backlog of 366,758 cases, with cases pending an average of 578 days and far longer in non-detained cases. These backlogs ill-serve immigrants that possess strong claims to remain, unnecessarily delay the removal of others, and incentivize illegal migration.

Third, several groups have offered humane, common-sense proposals that address the unique needs and vulnerabilities of children. Their recommendations include:

• adopting the "best interests of the child" standard for all immigration processes and decisions involving children;
• appointing independent advocates for children in custody;
• ensuring legal counsel for children in removal proceedings;
• creating sufficient community-based alternatives to detention; and
• developing secure repatriation programs.

The recent Department of Justice announcement on the creation of the "JusticeAmericorps" program, which will place 100 attorneys and paralegals in immigration courts to represent migrant children, represents an important step toward a humane, rights-respecting approach to this crisis.

DHS, Congress and non-governmental organizations also need to monitor the conditions in short-term holding facilities and the treatment of minors by the Border Patrol. Particular care also needs to be taken to ensure that Mexican youth receive the legally mandated screening to determine if they have been trafficked or fear returning home. Most of the attention in this crisis has been directed at the surge in unaccompanied minors from El Salvador, Guatemala and Honduras -- from 4,059 arrests in FY 2009 to 34,611 in the first eight months of FY 2014, with far more projected in FY 2015. However, substantial numbers of Mexican children also continue to arrive and, unlike Central Americans, face summary removal.

In the upcoming weeks, these children will be shamefully portrayed in Congressional hearings as threats to U.S. sovereignty, willful abusers of the U.S. asylum system, and prime evidence of insufficiently severe enforcement policies. Yet it will be to the nation's credit to assess their needs for protection, offer immigration relief and benefits to those who qualify, humanely return who are not eligible to remain, and treat these children like children should be treated the world over.

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