Immigrant children illegally crossing into the United States on the southwest border could face a lag time of more than a year before they stand before an immigration judge.
Experts say that there are hundreds of thousands of adults and children working their way through the legal system, and it will get worse unless people stop streaming across the border or the government takes action.
“That’s the issue,” said David Leopold, an immigration lawyer who has witnessed the bottleneck. “Immigration courts are woefully underfunded, short-staffed and don’t have adequate legal support. The backlogs are tremendous, even before this crisis came to light.”
Immigrations experts say the children are crossing the border in greater numbers because of violence in their own countries, because like earlier immigrants they hope to find a better life in the United States, and because they hope to reunite with relatives. Many immigrants also believe U.S. laws will help them stay in the United States.
“Couple that with some very bad people who are taking advantage of desperate people with trafficking, and it’s all causing the perfect storm,” Leopold said.
Congress and the administration are debating whether to change a 2008 U.S. law intended to stop human trafficking to try to slow the influx of immigrants. President Obama has also asked for $3.7 billion in emergency funding to deal with the crisis. Some of those funds would be used to speed up immigration trials.
As children cross the Rio Grande valley, the process for how they are treated immediately diverges depending on where they come from.
Any Mexican child apprehended at the border is given a quick interview to determine whether he or she is eligible for asylum. The threshold is high. Agents determine whether the child is afraid of persecution at home, or was the victim of or would be at risk of human trafficking if returned. If those conditions aren’t met, the child is returned home.
Children from countries that don’t border the U.S. — such as Honduras, El Salvador and Guatemala, where the majority of the recent influx came from — are treated differently.
When kids from those countries are captured, authorities at the border call the Department of Health and Human Services (HHS) to transfer the child to a long-term care facility.
That process is supposed to occur within 72 hours, but the flood of minors — and scarcity of beds at HHS facilities — means children stay for days in jails, on office floors, or even in border patrol vehicles waiting to be transferred.
Once they are transferred, children are sent to large, warehouse-like HHS facilities around the country, including the site in Murrietta, Calif., where protesters blocked busloads of children from arriving late last month.
In recent weeks, HHS has opened new, temporary facilities at army bases to handle the influx, while plans to open a facility near Richmond, Va., were scuttled because of protests.
When the children leave Border Patrol custody, they’re given a charging document that requires them to appear before an immigration judge.
Under usual conditions that court date is about three weeks after their transfer into HHS custody, but the massive crush of children has overwhelmed the courts, extending waiting periods by weeks or even months.
Placement with relatives
While the children are being held, the government attempts to place them either with family members in the United States or a foster home. They’re also given a “know your rights” presentation detailing the legal proceedings that await them.
Some children are quickly placed with their families or in foster homes, and then opt not to show up at their court date.
If a child does not show up for court, an immigration judge will order them to be removed from the country in absentia. Though enforcement of that order — which involves law enforcement officials proactively tracking down those children — is spotty. The White House has said it does not have data on what percentage of minors show up to their hearings.
“It’s near-impossible to get that data,” said Olga Byrne, director of Fordham University’s New York Unaccompanied Immigrant Children Project. “It’s a very lengthy process that would take months to sort through all of it and clean all of it up. I would question anyone who came up with data on how many kids are absconding.”
It also is not clear how many of the 52,000 immigrant children who entered the country through the end of May have been released to relatives.
People who appear in court have multiple options to extend their stay in the United States.
Children are automatically entitled to an asylum hearing, where they can plead that returning home would place them in mortal danger. If they opt to do so, immigration judges typically suspend their case to allow the child to find a pro bono attorney and schedule a hearing before an asylum officer, who will ultimately determine whether the child qualifies for those protections.
Alternatively, children can apply for special immigration juvenile status, which was intended to protect children who were fleeing parental abuse, neglect, or abandonment in their home countries. Although mere poverty is not enough to qualify a child for that status, each state defines abusive parents differently, and a child is entitled to a hearing before a separate, state court to argue their case.
Sometimes, lawyers also discover children are entitled to U.S. citizenship, or are eligible for other types of immigration protections. And individuals can apply for multiple types of relief, prolonging their deportation process.
But if a child exhausts those options, or decides to return home, he or she can ask for voluntary departure. By doing so, the children will be sent back without a deportation order that would harm their ability to immigrate to the United States in the future.
The White House has asked Congress for a $3.7 billion in emergency supplemental funds to address the crisis, particularly for bringing in more immigration lawyers.
But Leopold said while an increase in lawyers would help the process, “I get nervous when I hear speed associated with justice.
“You don’t want a system that processes children like a factory,” he said. “You want to make sure that each case is dealt with carefully.”