Freelance Journalist and Editor
October 27, 2014
The judge let her, and “she told the court how safe and happy she was now in the United States, and that she loved going to school and loved coming home and sharing her day with her Aunt Mercy. When she finished, everyone in the courtroom had tears in their eyes, even the court’s bailiff,” said Benson.
Of an estimated 5,000 unaccompanied migrant children in New York, Angelica is among the first to finish the complicated legal process of applying for immigration status. Her legal saga—reflecting the process in which thousands of children are currently involved across the U.S.—took 14 months and required six hearings in two different court systems, multiple filings in government offices and Angelica providing proof that she was fleeing danger and was now in school, according to Benson. The 8-year-old was awarded residency through a visa designed specifically for children, the Special Immigrant Juvenile Status (SIJ).
New York officials expect thousands of additional child migrants to arrive to the state in the coming months. The lucky ones, like Angelica, are headed for life as asylees or under one of three types of visas. Even once they’re awarded a visa, these kids—navigating a system mostly designed to handle adults—will face special challenges, immigrant and legal advocates say.
A range of possible fates
There are four different immigration statuses that legal experts across the country say may apply in the cases of these children. Immigration courts evaluate each child’s case to see whether it fits government-defined requirements for one of the four statuses.
Although experts say none of the four statuses is necessarily the best one for every child, each status offers different benefits and challenges.
The first is asylum. Candidates for asylum status must be able to show a credible fear of persecution in their home countries, leading them to flee home without first applying for legal status in the U.S. “Asylees, by the very nature of the fact that they’ve escaped their home countries, tend to be very dogged, very resourceful,” says Kelly Agnew Barajas, Director of Refugee Services and Workforce Development at Catholic Charities Community Services in Manhattan. “They’ve somehow managed to get themselves out of their country and out of harm’s way.”
Asylum status would offer unaccompanied children some important benefits, according to Ashley Huebner, managing attorney at the National Immigrant Justice Center. “Asylees are immediately eligible for work, federal financial aid, and to apply for permanent residency within one year,” says Huebner.
While this status does not give the child access to refugee resettlement benefits, it does offer one important benefit: the ability to petition for family members to also become legal residents. This is especially important for children, who may have come alone, but need their parents or other supportive adults in their lives.
Although asylum is similar to refugee status, one main difference is that for refugees, the application process must happen while still abroad. Refugees are often granted their status as a group, says Barajas of Catholic Charities, and then they arrive in an organized, “tightly controlled” fashion. Meanwhile, asylees are “often a surprise,” she says. Both statuses pave the way for permanent residency, but the process of applying for the green card is different. One final difference is that refugees are entitled to resettlement benefits for the first eight months of their time in the country.
Another status that many unaccompanied migrant children will be eligible for is the status awarded to Angelica, the SIJ visa. This is one of few aspects of the immigration system geared specifically for children, created by Congress in 1990 for minors abandoned or mistreated by their parents. The SIJ allows a child access to eight months of refugee resettlement benefits like medical care, cash and employment services; advocates point out, however, that refugee resettlement benefits like employment services are meant for adults.
The SIJ visa does allow a child to apply for a green card and, eventually, for citizenship. However, this visa doesn’t let children later sponsor their parents for citizenship; they may sponsor siblings only after they themselves become full U.S. citizens—a process that often takes years, and thus isn’t helpful if their siblings face immediate danger in their home countries.
The Safe Passage Project, a legal non-profit that pairs volunteer lawyers with undocumented immigrant youth, estimates that up to 90 percent of children may qualify for one of these two options, based on the cases they’ve seen so far.
The other two visas for which many children qualify are called U and T visas. U visas award temporary legal status and work authorization for victims of crimes to spend up to four years in the U.S. The T visa is for victims of human trafficking, and also only lasts four years. Children awarded either of the visas are immediately eligible for federal benefits for up to eight months, and may apply for permanent residency after three years on either status.
These visas do allow for the immigrant to sponsor family members. The U.S. government only awards 10,000 U visas and 5,000 T visas per year, however, so these will cover only a small portion of the unaccompanied child migrants currently in the U.S.
Geared toward adults
But meeting the qualifications for one of these four statuses is just the first step, immigrant advocates caution. Being able to navigate a complicated system, set up largely for adults, presents challenges both before and after receiving a visa or asylum status, they say.
Legal statuses “that allow people to live their lives most free of worry are the best for the people we see,” says Daniel Coates, organizer at Make the Road New York, an immigrant advocacy organization. “In that sense, what leads to residency and/or citizenship is ideal.”
All four statuses open the door for permanent legal residency—but only if the children are able to find the help they need to get through the complicated system.
“If this is hard for even us as adults to understand, you can imagine how it is for them,” says Camille Mackler, the director of legal initiatives at the New York Immigration Coalition (NYIC). She estimates the median age of the children in New York at 11 years old.
An additional factor is that undocumented immigrants don’t have the right to court-appointed legal representation, says Huebner. “This is a huge problem. Just because a child has a profile that perfectly qualifies them for legal status doesn’t mean that they’ll get it. The system is an enormously nuanced, and they have to comply with all the rules to win their cases.”
This is true whether the children are applying for an initial visa or asylum status, or have already been awarded it and now must apply to become permanent residents or to sponsor family members for a visa.
For this reason, pro-bono legal support is essential, NYIC’s Mackler says. “It is so important for each child or family to have a lawyer who cannot only identify the types of cases they are eligible to apply for, but also which are the best suited to their needs and situation.”
Scars from the journey
Beyond the logistical hurdles, another complicating factor for Central American children is the trauma they bring with them from experiences in their home countries and on the migrant trail. Representatives from the Bellevue/NYU Program for Survivors of Torture say they’re preparing to treat unaccompanied migrant children in the coming months.
About 80 percent of the children in New York have been reunited with family, says Betsy Plum, Outreach Coordinator at NYIC. However, for those who don’t have family waiting for them here, the coming months will also involve adapting to a foster family, while learning a new culture and language.
While they wait for answers about legal status, most of the unaccompanied minors in New York are in school, Benson says. She says that the enrollment process went smoothly, although there were a few reports of Long Island schools that didn’t want to allow in undocumented students. But the children “have a statutory and constitutional right to go to school,” Safe Passage’s Benson says. “We don’t punish children based on their immigration status. We don’t want to create a permanent underclass.”
New York public schools are equipped to absorb the new students, says Mackler of NYIC. “It sounds like such huge numbers of kids, but it’s not really,” she says. “Over one million students are enrolled in New York City public schools. The extra 1,500 won’t break the system.”
About half of New York’s unaccompanied minors are now living in Long Island. Nearly 25 percent—about 1,350 children—are in New York City, and the remaining ten percent are in Westchester, according to Mackler.
Court officials have responded to the surge of child migrants by trying to make an intricate legal system kid-friendly. This has been no easy task, because “refugee work in the city and throughout the country is really set up for adults and is very employment focused,” says Barajas of Catholic Charities.
To adapt the system to the needs of children, judges were ordered to prioritize their asylum applications, says Benson. Judges were also supposed to evaluate claims of persecution through the eyes of a child. Organizations like Safe Passage and Catholic Charities set up outside hearings to make it easier for children and families to connect with the pro-bono legal support they offer. On September 23, the New York City Council announced that it designated $5 million for legal representation and other services for the unaccompanied minors.
Coates of Make the Road points out that not all children are as lucky as Angelica. “One of our members is a woman from Honduras, and in the past year two of her grandchildren were killed in San Pedro Sula,” Coates says. “She wishes her grandchildren would have run away—she wishes she’d have sent for them. People are running from real dangers,” he said.
He added that while he believes the federal government’s decision to fast-track children’s applications “is wrong, because it will mean kids being deported who shouldn’t be,” he applauds the New York City government for “integrating services and trying to provide legal support—that’s the exact right thing to be doing,” he said.
Mackler emphasizes that the unaccompanied children are simply the most recent manifestation of a classic U.S. phenomenon –and one that history has proven can end well.
“We’ve seen this with the Irish, the Germans, so many people: They come afraid and broken. They rebuild their lives. And when they’re given a chance, they found Google, they’re our elected officials,” she said. “If we really do this right, these kids are our future leaders. This is what has always happened.”
This article is part of a Media Consortium collaboration on immigration reform. For more articles, please follow #TMCimm