By Attorneys Frances E. Arroyo & Nancy E. Miller En Español
Thousands of Central American children have been coming to the U.S. in recent months. These children are fleeing economic hardship, gang violence, human trafficking, or domestic violence. Some are coming to reunite with a family member. Undoubtedly, unaccompanied minors face difficult challenges upon their arrival into the U.S. Many of these children are subject to detention or placement into proceedings before an immigration judge. Throughout this very difficult process, there are laws in place designed to protect the minor children who arrive unaccompanied into the U.S. Through the enactment of the Trafficking Victims Protection Reauthorization Act “TVPRA”, many forms of relief are in place that specifically safeguard the interest of children. Some of those protections include relief from removal, special juvenile visa, T-visa, U-visa and asylum.
For the TVPRA protections to apply to a child arriving into the U.S he or she must be unaccompanied. This means that the child has no parents or legal guardian in the U.S or that no guardian or parent is available to provide care and physical custody. The child must also be under the age of eighteen and not have legal status. The process by which unaccompanied children enter the U.S. immigration system typically begins when they are apprehended by federal authorities on sus¬picion of violating immigration law. An unaccompanied minor child may be subsequently placed in immigration proceedings through the issuance of a Notice to Appear “NTA” in court, where he or she has the right to apply for relief.
There a several forms of relief that an unaccompanied child may apply for in immigration court. A child has the right to apply for voluntary departure from the U.S. at no cost to him or her. That is, he or she may elect to return to the home country at the expense of the U.S. government and may only return legally (with proper documentation). An unaccompanied child may also submit an application for asylum. Asylum relief is granted to unaccompanied children who are unable or unwilling to return to their country of nationality because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. They may also apply for related-relief under asylum law including withholding or removal and relief under the Convention Against Torture.
Because of their tender age and mental capacity, unaccompanied minors applying for asylum are treated differently from adults in the same situation. Relief under asylum law generally requires that an application be filed no more than one year from the date of entry. However, unaccompanied children are not subject to this requirement. Adults placed into proceedings may only have their asylum applications decided by the immigration judge. But, even where the unaccompanied child is before an immigration judge, the TVPRA gives an asylum officer initial jurisdiction over the application. This means that an immigration officer will make a decision on the child’s asylum application. If the officer does not grant it, the case application is then decided by the immigration judge. While the asylum application is in front of the asylum officer, the immigration judge may decide to take the court case off the active list. This process is called administrative closure.
Another protection available through the TVPRA is the special juvenile immigrant visa. This visa permits unaccompanied children who have come under the jurisdiction of a juvenile court and are under the age of twenty one to acquire lawful permanent resident status “LPR” in the U.S. The child must be declared a dependent upon a juvenile court. The judge must make a finding, based on the evidence before him that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law and that return of the minor to the country of nationality or last habitual residence is not in his or her best interest. After receiving special juvenile status, the child may submit a request for juvenile visa together with the application for LPR status. Other visas are also available to an unaccompanied child such as a U-visa for victims of certain crimes and T-visas for those children who were trafficked into the U.S.
Unaccompanied children in the immigration system are likely to be met with a complex process involving multiple agencies, complicated laws and politically motivated evolving polices. While laws do exist to give an unaccompanied child a fighting chance to stay in the U.S., it is in the child’s best interest to seek the advice and assistance of an experienced and knowledgeable immigration law attorney to help them maneuver through the maze.