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Immigration and asylum laws fail to protect immigrant children who attempt to enter the United States as unaccompanied minors. Some children come to this country in an effort to reunite with family members who already live here. Others flee poverty or persecution in their native countries. Whatever their reasons, vulnerable children set out on a long and often dangerous journey to the United States, only to be denied refuge and even a brief meeting with loved ones when they finally arrive. An examination of the placement of these children during their immigration proceedings and how asylum law does not address the reality of their lives reveals how the law, as it stands, fails to protect persecuted children. Actual custody of the children falls under the Department of Homeland Security (DHS). In some cities, such as El Paso, DHS contracts out the actual care of the children. When children first arrive, the U.S. Border Patrol places them in a children’s detention center. The case workers at the center contact the children’s family members and assist in the completion of reunification packets. In addition, the center in El Paso provides the children with the education and skills they will need when, and if, they are reunified. Legally, they generally have three options. Children with family or close friends who are in the United States legally may submit a reunification packet, first to a juvenile coordinator in the Bureau of Immigration and Customs Enforcement with the DHS, who issues a recommendation, then forwards the packet to the Office for Refugee Resettlement (ORR) for a final decision on the packet. For those without family or friends with whom they may be reunified, they may seek asylum or a Special Immigrant Juvenile Visa, if applicable, or they may seek an order of voluntary departure from the immigration judge. An order of voluntary departure allows the child to return to his or her home country without an order of removal in his or her file. The Department of Homeland Security and the Department of Health and Human Services are hashing out the details of an overhaul of the reunification process. DHHS, which governs the Office of Refugee Resettlement, is in the process of taking over the reunification packets. Most problems with reunification arise due to a lack of communication between the agencies, and the children wind up being detained for extended periods. Flores v. Reno (1993) is a landmark case governing children in detention, heard in the U.S. District Court for the Central District of California. It led to a settlement “calling for timely adjudication of reunification packets, and the release of minors from government custody without unnecessary delay.” This, unfortunately, is not the case in all parts of Texas. While waiting times vary, some children in detention facilities are stuck there for months. Juveniles who submit reunification packets must wait to receive review by a juvenile coordinator and final approval from the ORR before being released. These children find themselves in limbo as each of the various governmental agencies does its part in shuffling the packets through the system. Even after the ORR approves the packets, the regional headquarters of DHS still needs to issue a final order of approval, which can take as long as two weeks. These children must race against the clock to persuade the juvenile coordinator, then the ORR, to approve their reunification packets before their court dates. A child generally has four court appearances in which to present his or her case before the immigration judge. For those children who do not qualify for asylum or a special juvenile immigrant visa, reunification may be the only thing they seek. The courts, while sympathetic to the plights of these children, do not recognize reunification as a form of relief; therefore, judges won’t grant a continuance or stay action on the asylum or visa request pending approval of a reunification packet. If the child’s reunification packet is caught in the system and the child faces a final court date, the child must choose either voluntary departure or face a removal order. In these cases, the Bureau of Immigration and Customs Enforcement can return children to their home country without the children ever getting to reunite with the family members they traveled so far to see. Both classes of children �- those who choose voluntary departure and those ordered removed �- must remain in the detention facility until the date of their removal. They are no longer eligible to be reunified with family or friends. If an undocumented parent went to claim his or her child from a detention facility, the parent’s inability to produce identification would alert officials there that the parent was in the United States illegally. That likely would result in the juvenile coordinator issuing a notice to appear to the parent, which ultimately would trigger removal proceedings against the mother or father who simply wanted to claim the child. Economic Reasons Many of these children, with and without reunification packets, face difficult situations in their home countries. For those children who face persecution in their home countries, asylum is an option. To qualify for asylum, applicants must meet the definition of a refugee as found in the Immigration and Nationality Act. Specifically, �101(a)(42)(A) states that, to be classified as a refugee, one must have a well-founded fear of future persecution on account of one of five statutorily protected grounds: race, religion, nationality, membership in a particular social group or political opinion. Further, the persecution feared must be at the hands of a government or by forces that a government is unable or unwilling to control. For unaccompanied minors, particularly those from Central America, fitting into one of the five statutorily protected grounds is nearly impossible. While children are able to obtain asylum as derivatives through their parents, children who have come to the United States without their parents and who face persecution separate from their families are not eligible for derivative status. The five recognized categories for asylum under immigration law do not address the grounds upon which many children are persecuted. There has been some movement toward such recognition, though, especially for persecution based on membership in certain kinds of social groups. In 1985, the 1st U.S. Circuit Court of Appeals stated in Ananeh-Firempong v. INS that “[s]ocial group persecution must be based on a characteristic that either is beyond the power of the individual to change or is so fundamental to that individual’s identity or conscience that it ought not be required to be changed.” This definition works for children who may face forced gang recruitment or children whose lawyers can argue are street children in their home countries. However, many of the nearly 3,000 children in detention in the United States come from countries in Central and South America where poverty is a reason for fleeing. Yet they can’t seek asylum and/or special immigrant juvenile status because regulations pursuant to the Immigration and Nationality Act disable them from arguing that they are victims in their own countries due to economic reasons; the act limits fear of persecution to the five statutorily defined grounds, with no allowance for children who leave their homes in an effort to escape a life of grinding poverty. Many minors come to the United States to be with family already here, to improve their livelihood and to begin a future � dreams that are non-existent in the towns and cities from which they come. However, at the U.S./Mexican border, they will find only detention, a future with few solutions in sight and the possibility of deportation as their only option under present U.S. law. The immigration laws of this country focus solely on the lives of undocumented adults yet offer nothing suitable children. Advocates across the country believe that Congress must pass new legislation specifically for unaccompanied minors to protect this disenfranchised group. Otherwise, these children will return to a life of violence, poverty and, in many cases, death. Micaela Guthrie is the managing attorney of Las Americas in El Paso. Angelica Rubio is the coordinator of the Justice for Women and Children Project at Las Americas. Las Americas handles various immigration matters, including assisting individuals seeking political asylum, unaccompanied minors and battered women.

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