On a recent Friday morning in Austin, Texas, a 17-year-old from rural Honduras arrived in family court. Tall, smiley, and dressed in casual school clothes, Daniel (not his real name) held his mother’s hand in the hallway alongside women with divorce petitions and couples with custody disputes.
At first glance, Daniel’s case would seem to belong in immigration. Daniel was six years old when his mother left him with his grandparents so she could go to find work in the United States. His father had left the family two years earlier and never came back. When Daniel was diagnosed with an immune illness after a long bout of sickness at age 10, his mother reached out to her estranged husband for financial help; he refused. In the meantime, Daniel’s grandfather was becoming more and more abusive. Daniel’s only protection was his grandmother; when she died in 2013, he decided to join his mother in the United States.
Daniel did not have the money to pay a coyote to smuggle him to the United States. So he did what an estimated 400,000 young men do every year: he rode the Beast. The Beast, also known as The Train of the Dead, is a series of freight trains that traverse 1,400 miles, starting from southern Mexico and going all the way to the Texas border. To board, you have to jump and latch on to a moving train car, then climb onto the top and lay flat, hoping you don’t become one of the many who end up maimed, kidnapped, or robbed.
Daniel arrived safely at the Texas border last year. He was then detained in an Immigration Customs and Enforcement facility for a month before being released and reunited with his mother. For the last year, Daniel has lived with her outside of Austin, while attending school.
Daniel is one of the estimated 52,000 unaccompanied minors from Central America who have crossed into the U.S. since the middle of last year. The influx made headlines this summer as a “border crisis” that, in Texas, culminated with Governor Rick Perry bringing in the National Guard to patrol the state’s southern borderlands. President Obama and members of Congress have called for faster immigration hearings for unaccompanied minors like Daniel.
“That’s one of my biggest fears,” says legal advocate David Walding, who is currently working on 50 juvenile immigration cases in Austin. “That the new reform is going to put in some arbitrary timeline or random deadline on immigration cases, which could mean more deportations.”
One crucial issue ignored in today’s immigration debate is that migrant children, a distinctly vulnerable group, are seen by the system as interchangeable with adults. Unlike criminal court, immigration court does not consider age as a mitigating factor in how a person proceeds through the legal system. Children essentially have the same legal status as adults, entitled to no further protection or consideration. And exactly none of the “reforms” being contemplated by the White House or Congress would do anything to change that.
“Immigration court is set up to determine if a person is deportable,” says Walding “It is not set up to determine if a child is vulnerable, or would be in immediate danger if they were deported.”
Indeed, the Justice Department has expressly instructed federal immigration judges to not consider “the best interest of the child” when deciding whether the child should qualify for visa.
This directive has already proven fatal. Consider the case of 16-year-old Edgar Chocoy. Seventeen days after being deported from Colorado in 2004, he was gunned down by his former gang in Guatemala. Chocoy had predicted his own death during his immigration hearing, telling the presiding judge that the gang he fled at age 14 had put a hit out on him over a $400 debt. If he were to return to Guatemala, he insisted, they would murder him. But the judge denied Chocoy’s request for asylum and ordered his deportation. Chocoy was shot to death while watching a Catholic procession of saints in the streets of his hometown of Villanueva.
Deportation is overwhlemingly how the immigration courts deal with migrants like Chocoy and Daniel. In 2013, such courts approved less than five percent of asylum claims from El Salvador, Guatemala, and Honduras.
So rather than trying to secure legal resident green cards for their adolescent clients like Daniel, Walding and other pro bono attorneys in Texas have found a more hospitable venue that considers children to be, well, children: family court. It’s a venue that puts the welfare of the child front and center more than any other in the U.S. justice system, at least theoretically.
In the current heat of the minors’ crisis on the border, family court judges—who typically rule on issues of divorce, custody, and child support—are proving to be a benevolent force, offering a sort of escape hatch from the legal drama unaccompanied minors coming from Central America face.
“In Texas family court there is discussion about what is in the best interest of the child and more of a semblance of due process,” Walding explains. If the child can get access to a lawyer who can take them through family court, then they can build a case for a Special Immigration Juvenile (SIJ) visa, which could then get the child a green card and legal resident status. The use of such visas has exploded in recent years. Originally created to protect abused children being cared for in the U.S., it was given to just two children in 1992. The number went up 1,200 after Congress widened the criteria of who could qualify in 2008. As of June of this year over 3,900 petitions for an SIJ have been filed.
In a typical case, what happens is this: Once a migrant child enters the country they are eventually given notice to appear in federal immigration court. An attorney can file for an SIJ petition in state-run family court immediately, regardless of what is happening with a child’s case in immigration court. In Daniel’s case, he is not even due in immigration court until 2015. The family court process usually takes six months.
To qualify for the SIJ visa, an attorney needs to prove to a family court judge that his or her client cannot return home to a biological parent because of prior abuse, neglect, or abandonment. Once the judge agrees that it is not in the best interest of the child to be sent back to live with a parent in their country, he or she signs off on the attorney’s findings and the visa petition goes to United States Citizenship and Immigration Services, where it is typically approved.
That is, assuming a migrant child gets a lawyer. A new study out of Syracuse found that, over the last ten years, only 48 percent of children had legal representation in immigration court. In federal immigration court, children are not entitled to an attorney. That bears repeating: in the labyrinthine system of immigration law that extends through five government agencies – Department of Homeland Security, Department of Human Services, Office of Refugee Resettlement, Immigrations and Customs Enforcement – children are not appointed counsel.
“Their best chance is in family court,” says Daniel’s attorney, Tania K. Rosamond. “There they have due process about the child’s best interest. If they speed up immigration trials so that we don’t have time to make the case in family court, then they can get stuck in a long two-year appeal process and ultimately get turned down. Or they just get deported. If we don’t have the time to go to family court,” Rosamond says, “it will be really bad for these kids.”
In Daniel’s petition, Rosamond argues that his father is neglectful and that Daniel would be in danger if he were sent back to live with him in Honduras. Joining Rosamond in court is Linda Brandmiller, an ad-litem attorney representing Daniel’s father.
“We need to make sure the case is air tight,” Brandmiller says, “and you don’t want to trample on any parent’s rights to their child.” Brandmiller’s role is to prove to the judge that all reasonable attempts have been made to contact Daniel’s father and let him know that Daniel’s mother is seeking sole custody of her son in the United States.
“We have no address for the father so I did a thorough Internet search for him,” Brandmiller says. “That didn’t bring up anything. Then I put out a notice in the Austin American-Statesman telling Daniel’s dad, or any one who knows Daniel’s dad, that we are looking for him. Then I gave a notice to a radio station that broadcasts in Honduras that there’s a court case regarding his son. Nothing. No response.”
Following a divorce hearing, the family court judge calls Daniel’s case. Rosamond and Brandmiller approach the bench and hand in their findings, which include an affidavit telling Daniel’s story and an itemized list of the attempts to contact his father. After about ten minutes of review, the Travis County judge confirms the findings and rules that it is in the best interest of Daniel that he not be sent back home to Honduras. From Daniel’s arrival in Texas to the judge signing off on his petition for a SIJ visa, the whole process has taken about eight months.
By the time Daniel’s first immigration court date arrives, his visa will have already been approved by the Citizenship and Immigration department and his case will be moot.
Daniel and his mother embrace.
“Don’t travel anywhere without telling me,” Rosamond tells Daniel and his mother.
They thank Rosamond and Brandmiller, and quickly leave the courthouse to have breakfast in downtown Austin.
Among the masses of Central American youth currently afloat in a broken U.S. immigration system, Daniel is one of the few lucky ones. He had a devoted legal team that got him out of the maw of the immigration courts and into a child-friendly venue; he had compelling proof of his need and he had a mother who relentlessly stood by him. Tens of thousands of desperate minors just like him continue to be loaded onto a different sort of Beast: the U.S. immigration court system, which functions, essentially, as a set of streamlined deportation machines. When the newest “reforms” are announced in a few weeks on behalf of these children, that machine, ironically, will most likely kick into turbo mode.
Photo: Eduardo Verdugo/AP; John Moore/Getty Images; Getty Images