Immigration relief stalled again in court for unaccompanied minors

By Oona West

Minors in an overcrowded south Texas detention center circa 2016

When immigration officials tried to quickly and quietly deport three young brothers one of the most complex and drawn-out legal battles ensued about the legal rights of unaccompanied minors and deportation.

In 2012, three brothers aged 10, 12, and 14 who lived on the streets of Guatemala City escaped harassment and abuse from the Mara Salvatrucha gang. The boys had been repeatedly targeted for recruitment, robbed, beaten, and threatened with death for refusal to join and work for the gang selling items like chewing gum and cooking oil. A gang member retaliated against the brothers for their refusal and murdered another street child in front of them. This is a common tactic used to scare children into working for the gang or become members. The brothers fled following groups of migrants also fleeing gang violence. The brothers along with the group of other migrants reached the US border after riding on top of a Mexican freight train.

The brothers made multiple attempts to cross the US border. On their first attempt, they were almost caught and ran from border patrol, on their second attempt they were caught and detained within 25 miles of the border and sent to a Mexican holding center for migrants. The brothers escaped the center with a group of other migrants to try and cross again. To avoid detection and finally gain entry they separated from the route and people they were following. After many days wandering the desert, the boys suffered dehydration, starvation, and exposure. A customs and border patrol on a routine check spotted the boys and provided medical assistance. The three boys were rescued and sent to recover in a Florida hospital due to severe overcrowding at the two juvenile detention centers in Texas. After their 10 day recovery, Customs and Border Patrol attempted to engage in a practice called "expedited removal." Expedited removal is a process where a person is removed from the United States without a formal removal hearing in front of a judge and is not able to argue a legal defense to their deportation. The only way to avoid expedited removal is to seek asylum.

Carlotta Andreu, an ACLU attorney representing the minors on their second appeal stated, "this practice is a complete denial of a person's due process rights. Expedited removal is enforced randomly and with no oversight or accountability. The use of this process is especially concerning when it involves unaccompanied minors, the most vulnerable group of migrants."

An expedited removal is a legal form of removal allowed for anyone who has been in the United States unlawfully for under two years who is detained within 100 miles of a border or entry point and who has attempted multiple border crossings. It is a very common process used at the border. Because the boys were rescued within 100 miles of a border, had been in the country for less than two years, and had made multiple border crossing attempts, the government engaged in a plan to remove the boys to a children’s service center in Mexico even though the boys were Guatemalan. A hospital social worker concerned that the children might attempt another border crossing and die in the process contacted the ACLU which filed an immediate stay on the children’s removal in federal court, which stalled their removal process.

Minors are typically allowed to apply for a unique form of immigration relief called Special Immigrant Juvenile Status (SIJ) if they can meet certain legal criteria which would end a deportation order in a traditional deportation hearing in front of a judge. However, minors are not permitted to apply for SIJ status if they are in expedited removal proceedings which act as a transfer between US and Mexican immigration detention centers. If the brothers were able to gain SIJ status the boys would not be deported and allowed to adjust their legal status as legal permanent residents.

The case of whether the boys were subject to expedited removal worked its way through Florida’s federal court system and eventually ended up in the Eleventh Circuit Court of Appeals in 2014. Except the appeals court never reached the legal question of whether unaccompanied minors are subject to expedited removal or whether they require a full hearing on their deportability. The only question to reach the Court was a procedural question on whether the emergency stay the ACLU obtained could be used to stop an expedited removal, which is not the method permitted in the statute.

The Eleventh Circuit held that an emergency stay could be used to stop the current expedited removal, due to the extreme nature of deporting children to a different country from where they came, the children’s health concerns, that they were unaccompanied, and that no one asked the children whether they were here to claim asylum, which is a procedural requirement in expedited removal process. Although, the ruling did not extend that right to all cases of expedited removal even ones involving juveniles, just cases where there was “a startling loss of due process.” The actual question of whether juveniles could be deported in this manner was remanded to the lower courts. The brothers are stuck in a legal limbo until the main legal question is answered and are barred from applying for their SIJ status while this case is pending. In 2016 on remand, the lower court held that unaccompanied minors facing deportation required a full hearing and could not be removed via expedited removal. The Department of Justice appealed the ruling.

Through their intense legal battles, the brothers have lived in a foster home and their foster family has been trying to adopt them. However, without being able to obtain their special immigrant juvenile status while their federal case is being litigated or gain legal status through asylum the boys are not eligible for adoption. (The brothers were also involved in another case between the United States and Florida on jurisdiction over their welfare and custody)

In 2015, an official asylum case was brought on behalf of the brothers in immigration court by a legal team from Gould, Lowey, Wilson, & Sanders, LLP. A grant of asylum would end the original case on whether the boys could be removed through the expedited procedure thus ending their legal turmoil and allow for their adoption. Like SIJ status, a grant of asylum allows a person to adjust status to a legal permanent resident and eventually become a United States citizen. Unfortunately, unlike SIJ status, asylum is not a guaranteed route for immigration relief when the claim is based on gang violence.

The Florida immigration court denied asylum relief to the brothers in 2017 because the judge did not find the testimony of three boys credible. The judge stated in his findings that the demeanors and testimony of the minors arose “concerns of plausibility and vagueness” in their stories. The judge also stated there were inconsistencies in the boys’ recounting of the trauma and persecution they experienced.

Dina Sanders an attorney on the brothers' asylum case described the Southeastern United States as an “asylum free zone where only 2-4% of asylum cases are successful.” She further stated that if this case was brought in New York it likely would have had the complete opposite outcome, noting that, "roughly 70 to 80% of asylum cases are successful in the Northeastern region, a complete flip from the south."

The asylum attorneys appealed the denial to the Board of Immigration Appeals on the ground that a judge must consider the traumatic experiences of a juvenile when assessing a child’s credibility. As of now, there is no requirement for an immigration judge to consider the nature of a child’s trauma when making a determination on a child's credibility, and judges are allowed to infer negatively on a person’s credibility when testifying due to their demeanor or inconsistent recounting of a story.

Child psychology experts agree that vagueness is not an uncommon trait when children are describing a traumatic experience, especially when recalling it as an older child. In most states, juvenile court and family court judges are prohibited from making negative inferences on trauma testimony from a child. However, those rules do not extend to federal or immigration court.

In February 2018, the Board of Immigration Appeals reversed the immigration judge's findings and granted asylum to the brothers ordering that a judge could not draw negative conclusions about the credibility of a child asylum applicant because of some difficulties or inconsistencies recalling extreme childhood trauma. The Board stated that the judge must give greater leeway to children testifying on traumatic experiences than adults.

On March 5, 2018, the Department of Justice appealed the Board’s grant of asylum arguing that the immigration judge has ultimate authority on the assessment of credibility and does not have to consider additional factors when assessing the credibility of a child asylum applicant. The asylum appeal was consolidated with the pending appeal of removal procedures for juveniles and will be heard in May 2018 by the Eleventh Circuit, hopefully making this the last of the brothers' legal battles.

Sanders later stated in a phone interview that, “the questions that are raised in this case are questions of law and policy and should be answered and addressed by law and policy makers, not litigated at the expense of children awaiting status adjustment. I think this case details numerous systemic failures that are not on the radar of our legislators, and it is very distressing."

See the original cases here: Three Unnamed Unaccompanied Minors v. Holder, 2012 (removal process) Three Unnamed Unaccompanied Minors v. Lynch, 2015 (asylum) Sessions v. Three Unnamed Unaccompanied Minors, 2018 (consolidated name on appeal)