OCTOBER 2014



Showing Pakikiramay in a Crisis: Part 2



By Rhodora Derpo

Immigration Attorney

Immigrant Rights Advocate

info@immigrantadvocate.com

 





This is the second installment of a two-part series (first part August) regarding the humanitarian and refugee crisis involving migrant children arriving in the United States from Central America.



In August, I examined the humanitarian and refugee crisis of the tens of thousands of children crossing the United States-Mexico border. That article called for the United States to employ pakikiramay principles by providing appropriate resources to help migrant children who are apprehended at the border. This article will focus on the types of legal relief available to them.

 

International Child Protection Obligations


It is important to note that individuals have the right to seek protection from persecution and violence both through international and U.S. law. Article 14 of the Universal Declaration of Human Rights states that, "Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations." Additionally, the United States has entered into numerous treaties with other countries to ensure the safe passage and protection of refugees. Among the most important are the 1952 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol. Under these treaties, the United States may not return an individual to a country where he or she faces persecution from a government or a group the government is unable or unwilling to control based on race, religion, nationality, political opinion, or membership in a particular social group. A separate treaty, known as the Convention Against Torture, prohibits the return of people to a country where there are substantial grounds to believe they may be tortured.


Furthermore, the United States is required to safeguard the best interests of the unaccompanied children as a signatory to the U.N. Convention on the Rights of the Child (CRC), which codifies standards for the rights and protection of all children, including refugee children. The "best interests of the child" principle requires the United States to assess protection needs from the child's perspective, which requires an examination of experienced or potential impact of harm to a child's rights or interests, to ensure that no child is denied international protection in error.

 

Legal Relief under U.S. Law


Under U.S. laws, unaccompanied children may potentially qualify for the following types of relief:
Asylum: Asylum is a form of international protection available to an individual who is physically present in the United States, and who is unable or unwilling to return to his or her home country due to past persecution, or a well-founded fear of future persecution on account of his or her race, religion, nationality, political opinion, or membership in a particular social group. Persecution is defined as a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive. To meet the definition of persecution in this context one need not have suffered permanent or serious injuries nor must the injury be physical. Widespread general violence in a nation does not usually meet the standard of persecution for asylum purposes. The persecution must be inflicted by the government, or by individuals who the government is unable or unwilling to control.


Special Immigrant Juvenile Status (SIJS): SIJS is a humanitarian form of relief available to noncitizen minors who enter the child welfare system due to abuse, neglect, or abandonment by one or both parents. To be eligible for SIJS, a child must be under 21, unmarried, and the subject of certain dependency orders issued by a juvenile court.
U visas: A U visa is available to an individual who has suffered substantial physical or mental abuse, as a result of having been a victim of certain crimes. To be eligible, the individual must possess information and knowledge regarding the details of the criminal activity, he or she must also have been helpful, or be likely to be helpful in the future, to a certifying agency in the investigation or prosecution of the criminal activity, the criminal activity must have occurred within the United States or U.S. territories, or violated a U.S. federal law that calls for extraterritorial jurisdiction.


T visas: T visas are available to an individual who has been subject to a severe form of trafficking. This includes sex trafficking, where a child under the age of 18 is forced to perform a commercial sex act by force, fraud, or coercion. It also includes trafficking for purposes of labor, where one is transported, harbored, or obtained for the purpose of involuntary servitude, slavery, or debt bondage. An applicant must be physically present in the U.S. or its territories on account of the trafficking; comply with reasonable requests by law enforcement to assist in investigation or prosecution of the trafficking; and would suffer extreme hardship involving unusual and severe harm upon removal.
There is no right to counsel in immigration proceedings since immigration is a civil matter. This means that some of the unaccompanied children who are eligible for immigration relief are more than likely to be removed because they will be unable to provide their own defense.•


 

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