Border Violations
Thousands of children fled violence to make it to the U.S., but we weren't so welcoming
By Dina Samir Shehata, Fri., April 3, 2015
Last summer, the Obama administration scrambled to deal with a surge of unaccompanied children coming to the U.S. from Mexico and the Northern Triangle of Central America (Guatemala, Honduras, and El Salvador). The plentiful media coverage and frantic commentary by government officials on the subject made it sound as though the U.S. were facing a new problem. True, the number – nearly 52,000 – of unaccompanied children coming specifically from Central America was higher in the fiscal year of 2014 than ever before; but the issue itself was hardly new. Thousands of children come alone every year to the U.S. border, seeking protection. In FY 2009, U.S. Customs and Border Protection (CBP) encountered almost 17,000 from Mexico alone.
For Amy Thompson, a policy analyst and advocate who is currently a graduate research assistant at UT-Austin's School of Social Work, the number of unaccompanied children that came to the U.S. last summer was no surprise. The federal government's lack of preparedness was what was surprising. "The U.S. does not know what's happening next door; we have to rely on the United Nations to explain what's going on in our neighboring countries."
"It is absolutely our government's failure to prepare for something it knew it was coming," said Jonathan Ryan, executive director of the Refugee & Immigrant Center for Education & Legal Services (RAICES), explaining that the U.S. was very slow in getting sufficient shelters to house child migrants last summer. Local organizations that have been involved closely with the issue of unaccompanied children coming to the U.S. border every year – as well as international organizations such as the U.N.'s refugee agency – have repeatedly addressed the U.S.'s reactive approach in evaluating and dealing with the issue.
The Beastly Journey
But first, some context.
La Bestia is the immigrants' nickname for the freight train that transports many children and adults from Central America and Mexico to the U.S. every year. "The Beast" has a notorious history of taking the lives and limbs of many migrants. Yet it is the only way for the poorest Central Americans and Mexicans to make the journey. They cannot afford van or passenger train trips through Mexico, which are organized by smuggling networks and can cost up to $10,000, according to the Migration Policy Institute (MPI).
Emigrants from Central America must first make it past the southern Mexican border. Crossing into Mexico and reaching the train is not a hard endeavor, due to light patrolling and the efficacy of a bribe here and there. Once in Mexico, migrants climb atop a railcar, where they will remain for the entire journey. Depending on where they are heading in the U.S., migrants will change train lines. Along the way, they stop at shelters operated by nonprofits that offer migrants food and a place to sleep. Once they're near the U.S. border, migrants pay a smuggler, known as a coyote, to help them enter the States, where trains are subject to close inspection.
Throughout the journey, migrants face deadly risks. On the Beast, those who fall asleep or are jostled when the train rapidly changes speed sometimes fall off the train. An even greater danger is from organized crime. Organized groups have kidnapped thousands of migrants throughout Mexico. Those captured are often injured, may have limbs amputated in order to intimidate their families into paying a ransom, or are killed. Certain territories travelers must cross are dominated by Central American and Mexican gangs, such as Mara Salvatrucha (MS-13) and Los Zetas. Migrants who don't pay gang members are often pushed off the train while it's moving. Even train conductors demand bribes, mostly from women and families with children who want to be able board the train before it starts moving, reports MPI. Rape is a common threat facing female migrants. Exact numbers are hard to come by – Amnesty International reported in 2010 that 60% of girls and women crossing from Central America to the U.S. will be raped. In preparation for the journey, women and girls take contraceptives.
Law vs. Reality
What becomes of children apprehended on the U.S. border depends on whether their country of origin is neighboring (Mexico), or non-neighboring (Central America). All children are screened by U.S. Customs and Border Protection, the same agency tasked with defending the country against foreign terrorists.
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which President George W. Bush signed just before leaving office, requires that children from non-neighboring countries are referred to the Office of Refugee Resettlement within the Department of Health & Human Services within 72 hours. After being placed in ORR shelters, children are screened and provided with legal representation. The primary forms of relief available to them include asylum "U" visas for victims of serious crimes, and "T" visas for victims of trafficking.
RAICES is one of the nonprofit organizations designated by HHS to provide screening and legal representation for children in ORR custody in San Antonio and Corpus Christi. Partially funded by the federal government, the organization raises additional money in order to be able to provide legal representation to as many children as possible. Children whom RAICES staff determine to be eligible for relief have a success rate of about 98% in proceedings before immigration judges. However, not all Central American children placed in ORR custody receive legal representation. As the number of refugees has risen, more children have headed to "emerging" states, such as North and South Carolina, Alabama, and Georgia, which are known for anti-immigration policies. Children in these states often do not get the legal support they would need to make a case under TVPRA, Ryan explained.
However, children from Central America at least have a chance of getting proper screening and legal representation once sent to an ORR facility. Mexican children are not so fortunate. According to the TVPRA, children from neighboring countries are to be screened by CBP at the borders to establish that: 1) the child has not been a victim of trafficking nor is at risk of being trafficked when returned home; 2) the child has no fear of returning home; and 3) the child is able to make an independent decision to return home and withdraw his or her admission application to the U.S. If any of these criteria cannot be met, the child shall be handed over to the custody of ORR.
Turning Back the Children
That's how it works, in theory. In practice, a confidential report by the United Nations High Commissioner for Refugees, using material gathered in 2012 and 2013, revealed major violations with respect to the screening of Mexican unaccompanied children.
According to the UNHCR report, CBP screening of children focuses on getting quick answers rather than coming to grips with every child's situation. Officers ask questions straight off the forms that are supposed to detect potential trafficking, a process that usually takes 10 minutes. "The speed and tone of questions of such sensitive nature may further inhibit a child, who may be fearful or traumatized, from speaking up," according to the report.
Moreover, not all CBP officers have Spanish-language skills, and not all Border Patrol stations have Spanish forms. UNHCR observed an agent making use of a young Guatemalan boy to interpret for an unrelated Guatemalan girl. "Such an arrangement," the report noted, "likely impedes the girl's willingness to answer certain questions honestly and completely." In another instance, an officer processing an unaccompanied child was using Google Translate to communicate with a girl. The translation did not make sense to the girl; the officer had difficulty pronouncing the Spanish words accurately. Consequently, UNHCR found that many children do not understand what CBP officials are trying to tell them, and do not know their rights.
Another problem with the screening is that it takes place in shared processing areas with other apprehended children and adults, despite the availability of at least one private interview room, UNHCR revealed. This kind of setting does not allow kids to share difficult and personal information. "Are children supposed to open up in the wake of being apprehended and reveal their souls to a person in a uniform and with a gun who does not speak their language?" Ryan asked.
UNHCR also observed a lack of understanding among CBP agents of the three main TVPRA criteria. The majority of officials interviewed by UNHCR were unable to clearly define human trafficking and distinguish it from human smuggling and other forms of exploitation. In their assessments of whether a child was trafficked or at risk of being trafficked, many agents said they would look for the obvious physical signs of injury or abuse, yet trafficking does not necessarily physically scar children.
More than half of the officials interviewed stated that it was not their job to assess a child's fear of returning to his or her home country. A significant number of officials stated that persecution is limited to harm imposed by the government, and that children who fear gangs or cartels do not consequently fear persecution and are returned home. "Not only is this not an accurate legal conclusion, given the prevalence of violence perpetrated by non-state actors in Mexico against whom the Mexican government is either unwilling or unable to protect its citizens, this misconstruction of asylum law and the standard in TVPRA08 has likely resulted in Mexican children being returned despite their need for further evaluation of their protection needs," the UNHCR report detailed.
According to TVPRA, children have to be able to make an independent decision to withdraw their application for admission to the U.S., which ensures protection for children who may be too young or lacking the mental capacity to make their own decisions about their safety. When presented with a hypothetical example of a mentally handicapped child, a number of agents responded that while they would take a softer approach in handling those children, they would be returned to Mexico like other children.
It is inevitable that in light of the poor screening of Mexican children, children's rights to protection are prevented from being exercised. In FY 2013, 95.5% of unaccompanied Mexican children were returned home.
This is not a new problem. In a 2008 report commissioned by the Center for Public Policy Priorities, "A Child Alone and Without Papers," Thompson also observed violations of the protocol for repatriating unaccompanied Mexican and Central American children. The U.S. often fails to notify authorities of the arrival of unaccompanied children, leaving them unprepared to meet returning children. Parents often have to make multiple long, expensive trips to pick up their children. Mexican authorities expressed concern that children are being repatriated in the middle of the night and to ports of entry not specified in regional agreements, which poses a threat to the lives of those children.
Furthermore, Thompson heard "troubling claims of child abuse and maltreatment" by U.S. Border Patrol officers. The unaccompanied children she interviewed described instances where they received poor medical attention, had no access to water while in Border Patrol stations, had to sleep on the floor without a blanket in extremely cold cells (often referred to as "iceboxes"), were not given any or enough food, were not allowed to contact family, were struck and knocked down by agents, and were transported "like dogs," in kennel-like compartments. Several children mentioned being ridiculed by the agents who apprehended them, and "one girl said she was threatened at gunpoint by Border Patrol."
Even if the existing laws were to be better implemented, noted Thompson, "the law on the books is insufficient." U.S. immigration law, as codified in the Immigration and Nationality Act, does not address how children should be treated throughout the course of federal custodianship. "If it involves children (with or without papers), you are automatically dealing with a child welfare issue," said Thompson. The U.S. has a robust child welfare system. "Child welfare values the nation holds need to be translated into immigration policies," he said.
Trading Blame
While the influx of unaccompanied children was happening last summer, the Obama administration placed blame on the TVPRA, which prevents the U.S. from immediately deporting newly arrived Central American children. Obama suggested revisiting the TVPRA in order to allow faster deportation of Central American children, similar to the rules currently applying to Mexicans. He sent a letter to leaders of Congress to asking for the "legal authorities" to expedite deportations along the border and to increase penalties for people caught smuggling children into the U.S.
"As active members of the globalized world, we are responsible for humanely welcoming refugees and internationally displaced people and children who come to our borders and seek assistance. We impose this responsibility and we hold other nations accountable all the time," Ryan said. The call for tweaking TVPRA "felt like the United States was trying to exempt itself from being part of the world," argued Ryan. "We project the image that we are the beacon of liberty and hope on Earth. Yet, it is an expensive proposition."
On the other side of the aisle, GOP leaders acted as though the TVPRA had been signed into law by Obama rather than his predecessor, and seized the opportunity to blame Obama's immigration policies for the problem.
Last summer, Senator Ted Cruz and Texas Attorney General (now Governor) Greg Abbott toured Lackland Air Force Base to witness for themselves the arrival of unaccompanied children. Pointing the finger at Obama, Abbott said in a press conference, "It is unacceptable ... to have a President promoting policies that entice children to navigate more than a thousand miles away from home going through the most treacherous circumstances, facing things like human trafficking and sexual assault," he said, concluding that the problem is a consequence of the United States' failure and refusal to impose the "rule of the law." Cruz blamed Obama's 2012 Deferred Action for Childhood Arrivals for the increase in the number of border crossings by children. "When the president of the United States announces to the world amnesty for those who have broken the law, the consequence is people respond to that," Cruz said. "And the way they respond to that is by handing over their children and to drug dealers and vicious cartels." In reality, many of these children are fleeing drug cartels.
RAICES' firsthand experience with unaccompanied children refutes Cruz's argument. The organization speaks with thousands of children from Central America every year during their thorough screening process. Ryan said, "Literally none of these children are aware of any immigration reforms. Many of these children do not know our president's name."
Both the U.S.' and Texas' approach to solving the issue has persistently been twofold: deportation and more boots on the ground. In a 2011 letter to Obama, then-Governor Rick Perry wrote, "These unaccompanied illegal minors should be cared for in their home countries, rather than burdening our already unsustainable entitlement systems. ... Our country can no longer provide the temptation for these unaccompanied minors to engage in this tragic and illegal immigration."
On March 18, the Texas House approved HB 11, a comprehensive "border security" bill which is estimated to cost the state about $4 billion over the next two years (see "Bill of the Week," April 3, 2015). While the bill increases Texas Department of Public Security presence on the border and introduces harsher penalties for human smuggling and trafficking, it fails to take into account the difference between immigrants and refugees. Child refugees fleeing violence and death are neither entering the U.S. because of the "temptation" of Obama's immigration policy, nor are they likely to be deterred by an increase in DPS presence.
"The government sometimes takes the most expensive routes in dealing with an issue," Ryan said, explaining that adding more boots on the ground serves little or no purpose. "The families and unaccompanied children who arrived last summer presented themselves at the borders; they were seeking out Border Patrol officers, not running from them."
"Following justice" is the right route in dealing with the issue of unaccompanied children, Ryan said. "Not out of kindness, but out of the U.S. responsibility under international law," Ryan said.
Leave or Be Shot
Conservative politicians and pundits have been consistent in framing the issue of unaccompanied children as an "immigration" issue; President Obama has called it a "humanitarian crisis." For the children seeking protection, it is a refugee crisis.
"How can you assign guilt to children who are fleeing countries that have no systems to seek refuge?" Thompson asked. Not only does framing the issue of unaccompanied children as an immigration problem make it harder for them to gain refugee status, it also shows a lack of understanding of the dangerous situations children face in their home countries that lead them to embark on this deadly journey. For instance, HB 11 makes no mention of the term "refugee," which Texas defines as "people living outside their country of origin who cannot return to their home due to fear of persecution based on their race, religion, ethnic group, or membership in a particular social or political group."
Óscar Martínez, Salvadoran journalist and author of The Beast: Riding the Rails and Dodging Narcos on the Migrant Trail, wrote in The Nation last July that "of course the United States represents better prospects for children migrants. But claiming that the main motivation of the children who flee the Northern Triangle is anything other than violence and danger is worse than false, because such claims try to absolve Americans of the responsibility for solving the crisis ... understanding what's really going on in the Northern Triangle, and why, imposes a moral responsibility on Americans to treat these children as what they are: refugees fleeing a serious humanitarian crisis." According to the U.N. Office on Drugs and Crime, Honduras' homicide rate in 2012 was 90.4 per 100,000, El Salvador's was 41.2, and Guatemala's was 39.9. According to the FBI's Uniform Crime Report, the homicide rate in the U.S. in 2012 was 4.7.
In his letter to President Obama last summer about the issue, Ryan wrote that the phenomenon occurring in Central America can be described as a "war on children."
"What is happening in Central America is beyond child abuse, domestic violence; it is a full-scale crime against children by multinational drug cartels and local gangs for whom children are becoming a major instrument," Ryan wrote. Any male child who reaches adolescence immediately becomes a threat to any local gang. If he's not recruited by one gang, then he'll be recruited by that gang's rival. The control gangs have over certain neighborhoods in Mexico and Central America lead many children to quit school, relocate, and live with a distant family member – or start their journey to the U.S.
"My grandmother is the one who told me to leave," a 17-year-old Honduran told the UNHCR (see "Children on the Run," UNHCR, 2014). "She said, 'If you don't join, the gang will shoot you. If you do, the rival gang or the cops will shoot you. But if you leave, no one will shoot you.'"
"It all begins with a person's story. Kids do not describe themselves as participating in mass migration, or part of some large event," Ryan explained. "These children are fleeing violence and direct threat against themselves."
The original version of this article quoted Amy Thompson as saying "numbers are announced ahead of time" after explaining that the number of unaccompanied children was no surprise. Thompson has since clarified that while the increase in the number of unaccompanied children who came over last summer was expected, the exact number of children was not able to be predicted ahead of time.
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