The Plight of Unaccompanied Child Migrants: United States and European Union Asylum Policies and Effects on the Most Vulnerable Population

Lizbeth Arias wrote “The Plight of Unaccompanied Child Migrants: United States and European Union Asylum Policies and Effects on the Most Vulnerable Population” as part of the 2016 Humanity in Action Diplomacy and Diversity Fellowship.

 

Marlo is a seventh grader from a small town in El Salvador, where he is realizing first hand that he resides in the homicide capital of the world. (1) With crushing desperation, Marlo’s mother has decided that replacing the books and pencils in his backpack with food and water for his upcoming journey is the safest decision for her child. She lost her job at a recently defunct factory and is unable to seek employment beyond neighborhood lines, as crossing gang territory is commonly welcomed with violence. A local criminal gang is now attempting to recruit Marlo, but his mother knows that if he gets inducted, he would be lost to a dismal life of danger and crime. His unwillingness to accept, however, could possibly be faced with fatal retaliation. He is bound northward, into the dangerous migrant trails winding through Mexico, with the hope of reaching the United States (US) border where he will attempt to change his status from migrant, to asylum seeker, to refugee. And so the unaccompanied journey begins.

North America is experiencing a historically unprecedented number of children seeking asylum, overwhelmingly from El Salvador, Guatemala, and Honduras (Central America’s Northern Triangle). (2) Europe’s child asylum seekers are largely fleeing Afghanistan, Syria, and the Horn of Africa. (3) Marlo’s story is a composite of the typical situations documented by the United Nations High Commissioner for Refugees (UNHCR) in their report “Children on the Run.” (4) The UNHCR asserts that the majority of asylum-seeking children they interviewed are clearly in need of international protection. Human rights protections must be invoked for those fleeing unparalleled violence. This is especially true for the most vulnerable population, unaccompanied child migrants.

The number of unaccompanied child migrants (UCMs) that crossed the southern US border almost tripled to 68.5 thousand in 2014 from 24 thousand in 2012. (5) In the European Union (EU), about 90,000 unaccompanied children sought asylum in 2015 alone. (6) It is important to understand the root causes that fuel these refugee movements and what major immigration policies in the US and the EU affect this population. EU states and the US must swiftly but effectively address glaring inconsistencies in the implementation of relevant policies and international agreements. There must also be greater cooperation between central and regional state authorities so as to not leave this population struggling in bureaucratic failures and grey zones.

Current Refugee Movements – From Where and Why are Children Migrating?

Migration to the United States

Due to a sharp increase in asylum-seeking migrants arriving at the US-Mexican border in 2011 and peaking in 2014, the current wave of migration to the US is often referred to as “the surge”. (7) According to the UNHCR, domestic abuse is one of two major patterns that causes children to seek international protection. Of the children interviewed by the UNHCR, 21% reported experiencing violence by their caretakers. (8) The second pattern, violence from criminal organizations, has caused endemic levels of violence throughout the region. El Salvador suffered double the number of homicides in 2014 compared to the year prior, due to a break in a controversial truce between the country's two most prominent rival gangs. According to the Institute of Legal Medicine in El Salvador, the country’s 2016 murder rate of 116 per 100,000 placed it 17 times over the global average. (9) Honduras experienced 104 murders per 100,000 in 2014, a 70% increase from the year prior. To put this in perspective, we can look to neighboring Costa Rica, which experienced 10 homicides per 100,000 in 2010. (10) Some organizations, however, have deemed these numbers unreliable due to governments’ underreporting of violent crimes. (11)

It would be remiss to discuss the instability of Central America without acknowledging its history of foreign interventions. Such history is too complex to justly unfold in this space, but it is important to note that in addition to the role of the US in the deposition of democratic government in Guatemala, it was also involved in funding civil wars in both Guatemala and El Salvador. (12) The US was then entrenched in the Iran-Contra affair that spilled over to bases in Honduras. (13) The political vacuums, weak government frameworks, and protracted violence in the region are the results of complicated domestic and international affairs, but the fact remains that the investments of the US in the region’s brutalities have created long-lasting effects.

Migration to Europe

Europe’s refugee numbers are greater, with many more source countries adding to migration flows in the region. In 2015, over a quarter of a million children arrived in Europe by sea. Of the total asylum applications received by EU member states, 23% were filed by UCMs. (14) Causes of the refugee movement on the European side include the protracted war in Syria, decades of war and unresolved conflict in Afghanistan, and unending conflict in Somalia. (15) Within Syria, 6.5 million people have been internally displaced, with an additional 4.9 million registered refugees outside of the country. (16) 

Second to Syria in displaced people is Afghanistan, from which Afghans are fleeing over four decades of protracted conflict. Continued activity from the Taliban, ISIS, and militant groups are fueling conflict and taking control of land where the government has failed to keep power. The UNHCR has estimated that about 2.7 million Afghans are registered as refugees, while an estimated 3 million are living within the region without documentation. (17) For many, the histories of violence and turmoil have culminated in their decision to flee – to leave the only home they know in desperate search of refuge.

What happens then, if a child survives the dangerous journey out of their home country in search of their right to apply for asylum? What is reception like in their first country of entry? Where are they detained as they move through the asylum process? Given that we are currently facing two major refugee movements in both hemispheres, it is critical that in addition to being aware of these humanitarian crises, we are learning what policies work and fail on both sides in an effort to better move forward.

Immigration Policies

The United States 

According to the Department of Homeland Security, the number of UCMs that crossed the US border increased by 90% between 2013 and 2014. Although there was a peak in the spring and summer of 2014, the migrant flow dropped by half in the final months of that same year. (18) Such a drastic drop from a record setting inflow raises questions as to how this migration suddenly plummeted. In order to address immigration backlog, President Obama requested 3.7 billion USD in emergency funds to provide much needed resources and to supplement immigration judges. (19) Congress denied this request and instead, initiated efforts to further secure the southern US and Mexican borders. Campaigns were funded and installed through the Northern Triangle and Mexico to deter potential migrants from embarking on the journey north. In addition to these campaigns, increased border surveillance at Mexico’s southern border was largely the reason for the drop in UCM at the US border. A 2016 report revealed that these campaigns are not actually deterring attempts at making the journey. (20) It is not that children have stopped coming, but rather that they are being apprehended earlier in their route and returned to the violence they fled.

In the event that they do arrive, the Trafficking Victims Protection Reauthorization Act (TVPRA) helps to protect children from being immediately deported without having a hearing. TVPRA makes it so these children are processed by the Office of Refugee Resettlement (ORR), which usually places the child with a family member if one is present within the US, while the child awaits hearing. This is in contrast to the process for adults, who await hearings in detention centers criticized for their harsh conditions and abuses. (21) A 2015 report by the Migration Policy Institute found that in 2014, 61% of UCM cases initiated at the start of 2014 were still pending by the end of August of that year. Further illustrating immigration backlog, the 2014 average wait time for an adult’s deportation hearing was 1,071 days. (22)

After ORR resettles them, they are turned over to the Department of Homeland Security (DHS)’s Asylum Offices, where children must represent themselves at their own expense, find non-profit representation, or forego legal counsel. Once they get to their hearing, they are often considered for two forms of protection most commonly applied to this population. The first reflects the United Nation’s Refugee Convention for which a child must show they have suffered past persecution or maintain a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Individuals who fit this description are eligible to apply for asylum. The second type of visa is called the Special Immigrant Juvenile (SIJ) visa and is reserved for those under the age of 21 who have been abused, abandoned, or neglected by a parent. (23)

In order to illustrate the policies and court procedures that shape a child’s quest for protection, I interviewed former Justice AmeriCorps attorney Alissa Cooley. Alissa worked for the Boyd School of Law’s Immigration Clinic in Las Vegas, where she represented UCMs from 2014 to 2016. It became evident that, even in cases when children do have an attorney, these hearings can be extraordinarily intimidating experiences. In speaking of a 16 year old client, Alissa shared, “he was shaking, trembling, uncomfortable with the task of appearing before a judge after his traumatic journey. It can take me four or five meetings with a client before I can get them to begin to trust me. I can be working with them for a year and still be learning new things relevant to their asylum case.” (24) The asylum process is marred with difficulties, but attempts have been made to alleviate the experience.

Alissa appreciates that the system attempts to provide specialized treatment to the more sensitive asylum cases of children. Instead of filing a case with the Executive Office of Immigration Review the way those over the age of 18 do, children’s cases are heard by the US Citizenship and Immigration Services Bureau (USCIS). Alissa shared, “during ‘the surge,’ a policy memo was issued asking judges to create a less adversarial environment and opt for plain dress instead of formal robes, come down from the bench to interact with the children, and enact role-play situations if needed to help them better express themselves.” These children must prove fear of persecution on the bases of race, nationality, membership in a particular social group, religion, or political opinion. In Alissa’s experience, “it is exceptionally challenging for children to express subjective fear, especially because their families try to shelter them from the specifics of the violence and instability they face.” (25)

Despite these efforts, Alissa stated that in her two years representing children, she never saw these initiatives practiced. Because of the overwhelming ratio of asylum cases to immigration judges, courts initiated “rocket dockets” in an effort to rush through as many cases as possible. Alissa adds, “the nearest USCIS asylum office to Las Vegas is in Anaheim, California, where 56% of overall UCM asylum cases are approved. In the event that a child’s case is determined ineligible by an Asylum Officer, the case is referred to the regular immigration court in Las Vegas. The immigration court in Las Vegas, in comparison to the court in Anaheim, has an abysmal approval rate of 3%. When I began appearing in the Las Vegas court, there were only two judges hearing these cases. After one retired, three more were hired, two of which had no immigration experience.” (26) 

In addition to the mounting difficulties a child faces in court, feelings of intimidation, language barrier, and burden to prove individualized fear of persecution, they also have to deal with judges who do not understand immigration law. Alissa explains, “one of the new judges asked to meet with a few immigration attorneys so we could explain asylum briefs to him as well as how the overall process worked, since he didn’t know.” (27) Beyond pro bono cases taken on by the Boyd Immigration Clinic and groups across the country willing to offer similar services, many of these children are expected to argue their cases without the tremendous benefit of legal representation. For fiscal year 2014, 73% of children with legal representation were allowed to remain in the United States, whereas only 15% of children without legal counsel were allowed to stay. (28)

Another obstacle children face is the difficulty of using gang violence as a sufficient source of fear. The difficulty stems from whether violence is one of the limited reasons recognized in refugee law. Michael Kagan, Director of the William S. Boyd School of Law Immigration Clinic, adds, “the original understanding of the UN Refugee Convention was focused on persecution by strong central governments such as those found in Nazi Germany or the former Soviet Union. The interpretation of the convention evolved to cover those fleeing non-state actors, militias, and domestic violence. The convention’s relevance to migrants fleeing gang violence is a cutting-edge legal issue which is not yet accepted as standard.” (29) This is obviously problematic, in a region rampant with gang and criminal activity.

The European Union

“You have to understand, that no one puts their children in a boat unless the water is safer than the land” (30)
- Warsan Shire 

During the summer of 2016, I visited a center aimed at providing support to the female migrant population in Athens. The center, named Melissa after the Greek word for honeybee, is a testament to the resourcefulness of women working together to achieve progress. Melissa provides bus passes to its participants to help them commute to the center from refugee camps in the city. In addition to backpacks stocked with basic essentials, the center also offers language training, classes in poetry, theatre, and dance, homemade meals, and a much-needed respite from daily refugee camp life.

During my visit, I noticed a teenage Afghan participant in an adjacent room, sitting among friends with a journal in her hand. One of the center’s founders asked the young girl if she would be willing to share some of her poetry with us. She joined us, but with a reticence often seen in children who move from their group of friends to a group of unrecognized adults. As she began to read, her shyness slowly dissipated as a smile began to curl upwards. She was excited to share something that she had created herself, something born of her own experience, creativity, and emotion. She shared sentiments of living an unpredictable life, of her turbulent journey to Greece, of the hostility she felt from some, and of the compassion she felt from others. As she reached the end, she spoke words full of hope and anticipation of a better tomorrow. She remained thankful to those who offered her kindness along the journey.      

My brief time at Melissa showed me how truly impactful their work is, but I also realized that their efforts exist in a neighborhood known for its xenophobic and anti-immigrant sentiments. The neighborhood is alive with the presence of Greece’s Golden Dawn political party, a neo-Nazi, nationalist, and racist organization that calls for the deportation of all “illegal immigrants” without exception. (31) Melissa, a beacon of humanitarian aid and integration, sitting amongst a neighborhood that rejects it, is symbolic of the state of immigration throughout the EU. It is critical to consider how and why those seeking asylum arrive in places like Athens, how their cases are processed, and, more specifically, how the EU handles the claims of UCMs.

The EU experienced an extremely sharp increase in asylum-seeking minors in 2015, with the number of cases skyrocketing to 96,000 from 13,800 just two years prior. (32) When handling these arrivals, member states are bound by the Common European Asylum System (CEAS). The system stipulates right to asylum and prohibition of refoulement, a principle that prevents the return of asylum seekers to their persecutors. (33) Further, there are six major pieces of EU legislation that apply to these children, but an understanding of a few key directives can help illustrate the UCM experience in Europe.

The Reception Conditions Directive dictates that asylum applicants have access to shelter, food, medical, and psychological care. This directive also draws a major distinction from the US side, as it guarantees children access to free legal assistance. Unfortunately, reports show that a lack of resources and coordination among authorities results in unrepresented children. (34) Further, the directive sets standards for detention facilities, but a variety of issues have been reported in terms of length of stay and conditions within centers. Specifically, Greece has been criticized for placing children in the same facilities as adults, a practice deemed inappropriate by many human rights organizations. (35) 

Another set of EU standards, set by the Asylum Procedures Directive, stipulates the handling of asylum cases. (36) For example, it states that EU countries may use medical examinations to determine the age of UCMs, who should be under the age of 18. This is clearly not applied across the EU, as states have separate standards for how examinations are conducted. In Malta, examinations are visual, and any person appearing to be over the age of 12 is considered an adult. (37)

The Dublin III Regulation establishes which member state will be responsible for the processing of asylum cases. Under the original Dublin Regulation, an asylum seeker would have to submit their application in their first country of entry. This, however, overwhelmed certain countries. Later versions of the Dublin Regulation allow for transfer requests in hopes to lessen the occurrences of irregular movement of asylum applications once they enter the system. (38) Because the original Dublin Regulation required the applicant to file their application in the country of first entry, many disappeared as they continued their journey to resettle in different areas.

After a child is first processed at an EU border, the child can be granted refuge or subsidiary protection status, or can be returned home. Unlike the US, the EU has ratified the UN’s Convention on the Rights of the Child (CRC), a human rights treaty which sets standards for the treatment of children. Many states, however, still skirt the responsibilities defined by the CRC and opt for standard immigration policy instead. (39) Given that certain regions experience higher direct responsibility for these children, due simply to geography and migration routes, central state governments tasked with upholding international laws often shirk their responsibilities to regional authority. Inconsistencies of practice between centralized and local governments create processing delays and issues for asylum applicants. The existence of extra-territorial zones, which operate under different legal regimes and standards, is a prime example of this. The Charles de Gaulle Airport transit zone is the most notable. Children are treated as never having entered France and are therefore excluded from central protections. (40) 

On a Path Marred with Obstructions, How Do We Move Forward?

Brett Stark, legal director of Terra Firm, a medical-legal partnership that serves children through service and advocacy, represents UCMs in US federal and state litigation. When asked what the single greatest challenge is to UCMs, he said, “it is the unjust nature of the pursuit of asylum, in which a child suffering some combination of severe emotional, psychological, and physical distress is expected to defend [their case] in court in a language they do not speak without legal counsel.  The nature of this process is unrealistic and unjust when a child is seeking refuge from such daunting and perilous conditions.” (41) A report released by the United Kingdom (UK)’s House of Lords asserts that:

“it has become increasingly clear that children, many of them unaccompanied… are in the forefront of this crisis. The implementation of existing EU measures to protect [this population] has been poor… We are concerned that the EU and its member states have lost sight of the plight of unaccompanied migrant children. They face a culture of disbelief and suspicion. Authorities try to avoid taking responsibility for their care and protection. Unsurprisingly, many children have lost trust in the institutions and measures intended to guarantee their rights, safety and well-being.” (42)

In the EU and in the US, a lack of uniform standards in immigration courts works against the goal of consistency. Prolonged detention for European UMCs and hearing times for American UMCs along with unrealizable age exams, bureaucratic inefficiencies, and lack of legal defense are exacerbating the problem. There have been efforts, however, to improve the status quo. For example, the EU established the Asylum, Migration, and Integration Fund (AMIF) with 3.137 billion EUR spanning 2014 to 2020. The fund was put in place to “promote the efficient management of migration flows and the implementation, strengthening and development of a common Union approach to asylum and immigration.” (43) It is too early to evaluate the effectiveness of this effort, but it seems like a positive step forward. On the US side, the Obama Administration implemented the Central American Minors Refugee/Parole Program, an in-country processing attempt at alleviating the asylum process. Unfortunately, this program, initiated in 2014, is so extremely limited that no children were accepted until November 2015, almost a year after implementation. (44)

Where the message of humanitarian protection is lost, the public sees these children merely as resource burdens and security threats. It is time that the most vulnerable population not be left as afterthoughts of policy formation or the objects of nationalist suspicion.  Efforts to address these humanitarian crises must be practical and thoughtful, instead of just political window dressing not intended to create impactful change. The 14th Dalai Lama writes that, “a human being survives only with hope, and hope by definition implies the thought of something better… our very survival depends on some idea of future happiness.” (45) We must give these children, unaccompanied and fighting for survival, reason to keep hope.


•     •     • 

About the Author 

Lizbeth Arias is a Senior Advisor for International Programs at the University of Nevada, Las Vegas, where she also completed her MA in Comparative Politics. Her master's research focused on judicial discretion in the European Union in relation to asylum appeals. Arias completed her BA in Political Science with concentrations in Pre-Law Philosophy and Chinese language in 2013, partially through studies in Liverpool, England and Chengdu, China. She previously worked as a paralegal in bankruptcy law, specifically helping clients affected by the subprime mortgage crisis.

 

Acknowledgments

The author and editor thank Brett Stark for his dedicated efforts in reviewing earlier versions of this article.

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27. Alissa Cooley, Attorney, interviewed by Lizbeth Arias, Oct. 13, 2016.

28. Ibid.

29. Ibid.

30. Ibid.

31. Transactional Records Access Clearinghouse, Syracuse University, November 25, 2014, http://trac.syr.edu/immigration/reports/371.

32. Michael Kagan, Attorney and Professor, interviewed by Lizbeth Arias, Sept. 5, 2016, Boyd School of Law, Las Vegas.

33. Warsan Shire, “Home,” https://www.umcnic.org/wp-content/uploads/2015/06/Home-Poem-by-Warsan-Shire.pdf.

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36. DIRECTIVE 2013/33/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 Jun. 2013 laying down standards for the reception of applicants for international protection (recast), http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0033.

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38. Amanda Levinson, “Unaccompanied Immigrant Children: A Growing Phenomen with Few Easy Solutions,” Migration Policy Institute, Jan. 24, 2011, accessed Aug. 11, 2016, http://www.migrationpolicy.org/article/unaccompanied-immigrant-children-growing-phenomenon-few-easy-solutions.

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43. Ibid.

44. Brett Stark, Attorney, interviewed by Lizbeth Arias, June 25, 2016.

45. “Children in Crisis: Unaccompanied Migrant Children in the EU,” House of Lords European Union Committee 2nd Report of Session 2016-17, Jul. 26, 2016, accessed Sept. 5, 2016, http://www.publications.parliament.uk/pa/ld201617/ldselect/ldeucom/34/34.pdf.

46. “Asylum, Migration and Integration Fund (AMIF),” European Commission, Jan. 1, 2017, accessed Jan 2, 2017, https://ec.europa.eu/home-affairs/financing/fundings/migration-asylum-borders/asylum-migration-integration-fund_en.

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48. Dalia Lama, Beyond Religion: Ethics for a Whole World, (New York: Houghton Mifflin Harcourt, 2012), 3.

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