Thousands of Central American children have been arriving to the United States in search of safety and protection. Children are fleeing their countries due to economic hardship, gang violence, human trafficking, and domestic violence or simply to reunite with a family member. Undoubtedly, unaccompanied minors face difficult challenges during their arrival into the U.S. Many arriving children are subject to temporary detention or placement in immigration court proceedings before an immigration judge.
Throughout this very difficult process there are various laws in place designed to protect the interest of minor children who arrive into the U.S. Through the enactment of the Trafficking Victims Protection Reauthorization Act “TVPRA”, many forms of relief are in place to ensure that unaccompanied minors avail themselves of protections that specifically safeguard their interest as children. Some of those protections include:
- Relief from removal
- Special juvenile visa
For the TVPRA protections to apply to a child arriving from another country 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 suspicion 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 defensively 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 their home countries at the expense of the U.S. government and may only return if they do so legally. 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 persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Unaccompanied children may apply for asylum based on the circumstances surrounding their fleeing their countries if it falls within the protections of asylum law. They may also apply for related relief under asylum law including withholding or removal and relief under the convention against torture.
Relief under asylum law generally requires that an application be filed one year from the date of entry. Nevertheless, this requirement is exempted for unaccompanied children. Additionally, even where the unaccompanied child is before an immigration judge, the TVPRA authorizes that instead an asylum officer have initial jurisdiction over the application. This means that before an immigration judge can decide on the merits of the child case, an immigration officer will have initial authority to grant or deny the asylum application. Due to the unaccompanied child’s tender age and mental capacity this process provides a more appropriate environment for them, free from the adversarial tone of a courtroom. During the pendency of the adjudication of their application before an Asylum officer, administrative closure of the case before the immigration court may also be an option. Nevertheless, the decision to administratively close proceedings is ultimately at the discretion of the immigration judge.
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 distinct requirement of this visa is that the child must be declared dependent upon a juvenile court and 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 whose return to their country of nationality or last habitual residence is not in their best interest. The child may submit a juvenile visa concurrently with their 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 complicated laws, polices and working with different agencies. Through the protection offered by TVPRA and other immigration laws an unaccompanied child has a fighting chance to stay in the U.S after making the perilous journey into the U.S.