Two years after tens of thousands of children and families began fleeing rampant violence in Central America for the United States, a year and a half after the ensuing media panic over their arrival triggered a militarized response from Texas, and a month after the Department of Homeland Security began raiding homes to deport those who’d supposedly lost their asylum cases, the ongoing crisis has laid bare the deepest weaknesses of the US asylum system. Chief among them is that migrants in immigration proceedings, including children, have no guarantee of legal counsel and are often forced to make their case in front of immigration judges alone.
On Thursday, Democratic senators led by minority leader Harry Reid introduced a bill to address this key gap. The “Fair Day in Court for Kids Act” would ensure that children and other “vulnerable” migrants like victims of torture or those with disabilities have access to a government attorney and legal orientation programs.
“The fact is there continues to be a humanitarian crisis brewing in Central America, and that’s forcing women and children to flee El Salvador, Honduras, Guatemala, the most violent countries in the world,” Senator Bob Menendez, one of the co-authors of the bill, said on Thursday. The recent steps the United States had taken, such as expanding a modest refugee program in Central America to approve applicants’ cases before they make the dangerous trek to this country were important but insufficient. Importantly, as Menendez noted, they did not offer “full and fair access” to the asylum system for the more than 100,000 children and families who’ve already entered.
Rather, 70 percent of families and 50 percent of children face their immigration proceedings without an attorney, according to Greg Chen, the American Immigration Lawyers Association’s director of advocacy. In the last two years, about 112,000 families and unaccompanied child migrants navigated the immigration courts without legal counsel. No surprise that their cases rarely result in asylum. Among the cases initiated in fiscal years 2014 and 2015, nearly 90 percent of unaccompanied minors who received a deportation order had no attorney, according to AILA.
The bill lands amid a resurgence of children and families who are crossing into the United States to escape serious domestic violence, growing gang violence, and a ballooning homicide rate. The Border Patrol apprehended 20,455 children at the US-Mexico border between October 2015 and January 2016—a 102 percent jump from the same period of time in 2015. Border crossings had tapered after an initial spike in the summer of 2014, but have climbed back up as the homicide rate in El Salvador, for example, jumped 70 percent in 2015 over the previous year.
Under US law, those who are apprehended at the border who have a credible fear of returning to their home countries have the right to file for asylum. They must prove that they have been persecuted or have a “well-founded fear” of persecution on the basis of strict categories like race, religion, nationality, or membership in a particular social group in their home country.