3329445By Jeremy B. Love, Immigration Attorney
July 18, 2014

The rising number of children being detained at the Southern border has garnered national attention and left many people wondering what to do about the issue.

There are a number of reasons that so many unaccompanied children, primarily from Central America, have been attempting to come to the US including poverty in their home countries, threats by gangs, and lack of police protection.

While these are important issues, I'd like to focus on what can be done to help these young immigrants, many of whom have little if any access to legal help.

Children from contiguous countries, Mexico and Canada, are interviewed and if the immigration officer determines that a child does not fear returning and has not been a victim, then the child is returned to his country of origin.  So, many children from Mexico and Canada are not afforded the opportunity to have a hearing or petition to stay in the US, and they are taken back across the border within a few hours.

The process is different for children from non-contiguous countries, including Guatemala, El Salvador and Honduras.  Unaccompanied minors from non-contiguous countries are turned over to Health and Human Services for a medical exam and then are found housing.  Due to the influx of children, they are often moved around and are held in detention facilities or military bases.  The process is the similar for minors from Mexico and Canada that are able to show fear of returning to their home countries.

These children are placed in removal proceedings and are not provided attorneys by the government.  Sometimes they are asked to sign forms, which could affect their reliefs from removal. 

When speaking with unaccompanied children who have been detained, it is important to remember the difficult journeys that they have endured and it may be hard for them to communicate because of the extreme stress of the experience and difficulty trusting others.  I highly recommend consulting with a qualified immigration attorney about a specific case before the child or a relative signs anything.  While undocumented immigrants are not provided an attorney by the government, everyone has the right to hire one.

So, what options do these children have once they are in custody?

First, if the minor has family members in the US, they can be released to them.  This sponsor must be an adult relative, an adult designated by the parents of the child, or an adult or entity approved by the Office of Refugee Resettlement.

Next, what are the minor’s immigration options to avoid being removed from the US?

Special Immigrant Juvenile  - A form of relief available to minors who have been abused or neglected by at least one parent.  This process involves a custody determination by a state or federal court. The benefit of SIJ is that the child can file for adjustment of status to that of a permanent resident; however he may not petition for his parents in the future.

Asylum – If the minor can show fear of returning to her home country due to fear of persecution due to being a member of a social group or based on past persecution, the child may request asylee status.  Asylees may also file for permanent residence.  

U Visa – A U Visa is a process by which a person who has been a victim of a serious crime in the US and has assisted law enforcement in the prosecution of the perpetrator may obtain a work permit and a visa for four years with a path to permanent residence. The U Visa is not available to most unaccompanied children who arrived recently because the crime must take place after they came to the US.

T Visa – Victims of human trafficking may apply for a T Visa if they can show that they would suffer extreme hardship if they were removed from the US.

As you can see, there are a number of options for unaccompanied children.  Depending on the specifics of the case, there may even be other options available to them.

If you are in touch with an unaccompanied minor in immigration custody, I recommend speaking with a qualified immigration attorney about which options may apply in a specific case.  While it may be difficult to stay in touch with an unaccompanied child, an attorney or non-profit organization may be able to assist you in locating them. 

These forms of relief from removal may take time, but if you can assist a child by sponsoring their release from custody, an immigration attorney may represent them in the court proceeding and pursue options that may allow them to stay in the US and obtain lawful immigration status.

Please contact us with any questions you may have about legal options for unaccompanied children or other immigration issues.