Not All Kids Are Equal: Central American Kids Get Court Dates, Mexicans Get The Boot

Fusion.net | “Not All Kids Are Equal: Central American Kids Get Court Dates, Mexicans Get The Boot”

When I meet Kevin* inside a Tijuana shelter, he stares straight into my eyes and asks me an urgent question. Can you pass me over there?

He’s slender, 16, and the words fall from his mouth without pause. He’s been here on the Mexican side of the border for a few days now, 1,800 miles from the jagged hills and rural countryside of his hometown in the state of Guerrero. Kevin likes Tijuana; he thinks it’s grande, libre, una ciudad bella.

But he’s desperate to leave.

The problem is, like many unaccompanied youth, he doesn’t have an exact destination, or a plan. Kevin’s godfather, who raised him, is already somewhere in the U.S.

Allá están a la luz del mundo, a la luz del día,” Kevin says. At home, organized crime operates in broad daylight, he tells me. After his godfather received death threats and fled, Kevin says he was also threatened. He tried moving to another neighborhood, but the problems followed him.

So now, Kevin is headed north. He knows his godfather is in the States. He just doesn’t know where.

A STEADY FLOW NORTH

Over the past month, the stories of unaccompanied Central American children have alternately captivated, saddened, and enraged many segments of the American public.

But children and teens from Mexico, who travel north for similar if not identical reasons, have been largely absent from the conversation.

“To me, they’re the same,” says Dr. Alejandra Castañeda, an investigator at the Mexican think tank El Colegio de la Frontera Norte and author of the book The Politics of Citizenship of Mexican Migrants. “I don’t see a lot of differences, if you look at it in terms of the region.”

In general, the number of Mexicans emigrating to the United States has dipped in recent years, balancing out at net zero. But the number of Mexican minors heading north remains steady.

Apprehensions of unaccompanied Mexican kids reached an all-time high last year, when U.S. Customs and Border Protection (CBP) reported the capture of 17,240 children. That’s an average of 47 per day, or 42 percent of the total unaccompanied children caught by Border Patrol. In comparison, the agency apprehended 8,068 Guatemalan kids, 6,747 Hondurans, and 5,990 Salvadorans in 2013.

“There’s always been volume from Mexico coming to the U.S.,” says Mark Hugo Lopez, director of Hispanic research at the Pew Research Center. “The Mexican numbers back to 2009 has been 11 to 12,000 kids arriving illegally in the US each year.”

The rate has remained steady. For fiscal year 2014, a total of 12,146 Mexican kids have been caught along the border. That means one out of four unaccompanied children snagged by Border Patrol is Mexican, making them the second largest group of apprehended kids behind Hondurans.

The majority of Central American and Mexican kids flee their native countries for the same reasons, says Elizabeth G. Kennedy, a Fulbright researcher working with child migrants in El Salvador as part of a doctoral dissertation on unaccompanied youth.

“They are afraid of forced gang or cartel recruitment and high levels of crime and violence targeted at young people,” Kennedy says. “At the same time, many live in extreme poverty and hope to obtain a better life for themselves and their loved ones through study and hard work.”

But there’s a big difference between how Mexican and Central American kids are treated once they cross the border. Mexican children and teens are deported almost immediately, without ever setting foot in court to argue their case for legal status. Their quick ouster is known as “expedited repatriation.” Central American children, however, are allowed to remain in the country until they go before a judge. Lawmakers from Texas are now discussing plans for new legislation aimed at removing Central American kids in a similarly expedited fashion.

That law would overturn the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), implemented in 2008 to protect kids migrating from “non-contiguous countries” from being pushed across the border into the clutches of trafficking networks. . It mandated children arriving from “non contiguous countries” were immune from immediate deportation. Instead, they’re now transferred into the custody of the Office of Refugees and Resettlement, and given a future court date to make a case for staying in the U.S., through an asylum claim or by obtaining a Special Immigrant Juvenile Status visa.

Since Mexico and Canada are contiguous countries, unaccompanied children crossing over from those citizens don’t get a day in court. Most Mexican kids never have contact with the Office of Refugees and Resettlement. Instead, Border Patrol agents calls the shots for Mexican kids, which means most of them get removed quickly and quietly.

“The way that the Mexican children are treated is unjust,” says Bryan Johnson, a Long Islandimmigration lawyer who currently represents around 100 unaccompanied migrant youth from Central America. “It’s kind of ignored, I think… The kids are here for less than 48 hours, and then dropped on the other side of the border. They’re an invisible population.”

TWO DISTINCT PROCESSES: THE MEXICAN DIFFERENCE

The process of removing Mexican minors is streamlined, simple, and undeniably cheaper for the United States. The Border Patrol picks up a kid. He or she is brought to a Border Patrol station, where they’re then questioned inside a screening office, temporarily detained according to specific kid-friendly rules, and given snacks and juice.

If the kids are traveling alone, and without documentation, then the consulate of their home country is supposed to be notified immediately.

The Border Patrol has a maximum of 72 hours in which to transfer kids to the custody of the Office of Refugee Resettlement (ORR)—a process that also involves a third government agency, Immigration and Customs Enforcement, which is responsible for the actual physical transport of the young detainees.

For Mexican kids, the process is abbreviated. Border agents have just 48 hours to repatriate them south of the border.

Very few Mexican kids end up in U.S. shelters, which are populated mostly with Central American youth, who can stay in protective custody for months –and in some cases years– until their court hearing.

Before repatriation, border agents are supposed to execute a series of questions to determine whether or not Mexican youth have gone through what the TVPRA calls a “severe form of trafficking in persons.” Agents also evaluate whether there’s any “credible evidence that the minor is at risk” upon expedited return to Mexico.

The screening is designed to determine whether the kids have a credible fear claim, and whether they can “make an independent decision to voluntarily return to his country of nationality or last habitual residence.”

Activists question the process.

“Voluntary return is impossible, because these are children,” says immigration lawyer Bryan Johnson. “They don’t have the sufficient intent to go back.”

When migrants—-kids and adults alike—- do make a claim for credible fear, Johnson claims, border agents don’t always document it correctly.

“They put down stuff that’s completely false,” he claims. “A lot of people say they are afraid, but CBP ignores them, and then there’s no paper trail… There’s no accountability at all. It’s a due-process free zone.”

Matthew Kolken, author of the Deportation and Removal blog and an immigration attorney practicing in New York, agrees. He says that letting Border Patrol staff decide whether or not to deport Mexican kids limits their chances to obtain relief.

“I’m always extremely wary of expedited removal,” Kolken says. “It gives individual agents at the border an unfettered discretionary decision-making authority– and those decisions are unreviewable.”

Further, he says, by expeditiously removing Mexican kids, they’re not given the same opportunity to apply for one of nearly 9,940 Special Immigrant Juvenile (SIJ) visas made available by law in the U.S each year.

QUICKLY DETAINED, QUICKLY REMOVED:
48 HOURS ON AMERICAN SOIL

During the kids’ brief time in the custody of the Border Patrol, a set of specific guidelines, created in part due to the settlement of a lawsuit, Reno v. Flores, defines how migrant kids are treated.All agents are required to go through a training related to the custody and processing of migrant minors during their time at the Border Patrol Academy. They’re also mandated to complete a regular refresher course: an hour of training each year completed online in the Border Patrol’s Virtual Learning Center.An accurate list of free legal service providers is supposed to be supplied to underage detainees. If the child or teen can’t read, or speak English, a Border Patrol agent is supposed to read them their rights in their native language. Kids get a free phone call, and if they’re held for over 24 hours, they’re supposed to get a mattress and blanket.Pillows are optional.“All detainees will be held under safe and humane conditions,” the official Customs and Border Protection procedure states. “Unaccompanied alien children in Border Patrol custody will be treated with dignity, respect, and special concern for their particular vulnerability as minors.”

Yet over time, multiple reports have knocked the agency for ignoring reported abuse, including a general failure to investigate complaints. One May 2014 report by the American Immigration Council used Freedom of Information Act requests to obtain a total of 809 abuse complaints against the Border Patrol, from January 2009 through January 2012. The report found that 97 percent of the reported abuse complaints remained unexamined, sometimes for years.

“Juveniles make up 7.2 percent of all complainants during the time period examined,” the report stated. “This percentage is strikingly consistent with apprehension statistics.”

Although a September 2010 report by the U.S Office of the Inspector General found the agency to be in compliance with the Flores agreement governing children’s treatment in custody, a few minor recommendations were made, including that certain Border Patrol stations better communicate the availability of clean water to the kids in their care.

Some children had apparently been drinking out of toilets.

And an independent evaluation of how CBP treats Mexican migrant kids, specifically, found plenty of room for improvement.

The study, done in 2011 by the cross-border nonprofit Appleseed, started by noting that, even in 2011, U.S. attention to unaccompanied children “focused on children from Central America and elsewhere, when the vast majority of unaccompanied children crossing U.S. borders are Mexican.”

It went on to say that “…TVPRA screening is not conducted either in a manner or in environments likely to elicit information that would indicate whether the minor is a potential victim of trafficking or abuse, and whether the child can and does voluntarily agree to return to Mexico.”

Appleseed called such failures “predictable,” given that Border Patrol agents are law enforcement agents, and therefore, “not surprisingly, without any child welfare expertise.”

Today, three years later, few other formal studies of the repatriation process and its consequences exist.

But in June, a new complaint against the Border Patrol filed by the ACLU’s Border Litigation Project in conjunction with four other immigrants rights groups, alleged a continual “systematic abuse of unaccompanied immigrant children.”

A subsequent Congressional Research Service report, released a little over a week later on June 23, 2014, noted that the OIG report had actually been “…unable to determine whether CBP (Customs and Border Patrol) personnel had sufficient training to comply with the provisions in the Flores Agreement.”

When asked about the reports of children being abused in custody, a CBP spokesman said “no comment.”

BACK ACROSS THE BORDER

Over one week in late June at the Casa YMCA shelter in Tijuana, coordinator Uriel González oversaw intake processes for 35 Mexican kids. Almost all of them, he says, were caught on their first attempt trying to cross into the United States.

The current monthly average at Casa YMCA, which exclusively serves migrant kids — mainly Mexicans deported from the United States — is 115. Since 1991, the shelter reports that approximately 50,0000 Mexican kids between the ages of 13 and 18 have filtered through its bright doors.

“Some days we can have three, some days we can have ten, eighteen, kids” González says. “But it’s definitely a challenge to guess how many kids we’re going to have.”

Casa YMCA, less than five miles from the San Diego border, is one of a chain of four shelters affiliated with the YMCA along the westernmost stretch of the U.S.-Mexico border. The others are in Piedras Negras, Coahuila; Agua Prieta, Sonora; and Ciudad Juárez, Chihuahua.

“One of the things that we’ve been observing is that this year most of the kids that we receive don’t try again,” he says. That’s because, he says, the risks are too high. It’s simply too dangerous.

Most kids here report spending just 12-15 hours in Border Patrol custody in San Diego, González says. In general, after being transferred into the hands of Mexico’s child protective services, migrant children and teens end up in the informal shelter system, a network funded largely by private grants and powered in part by volunteers.

Part of González’s job is to try to reunify kids with their family and communities across Mexico, but it doesn’t always work. Casa YMCA’s open door policy means that youth come and go at will, as long as they give shelter staff a heads-up. González warns them against trying to cross again.

“It is a risk every time that a kid goes by themselves to try to cross the border undocumented,” he says. “The smugglers are members of the organized crime, and unfortunately they don’t treat migrants as people. They see them as the dollar symbols.”

I ask González, after our interview, if his work at Casa YMCA takes an emotional toll. He’s been there for decades.

He chuckles sadly.

“I go to therapy every six months,” he confesses. “I have to. It’s hard.”

THE ODDS FOR LEGAL RELIEF: SLIM TO NONE

Overall, Mexico ranks second in the world for the number of people filing applications for asylum in the United States, according to the United Nations High Commissioner for Refugees.

The Transactional Records Access Clearinghouse (TRAC), a nonpartisan center based at Syracuse University that tracks immigration enforcement and court rulings, analyzed overall asylum approval rates in the U.S. across a timespan of five years.

Using records obtained directly from immigration courts across the country, TRAC found that just 1.6 percent of Mexican asylum applicants were approved. The average approval rate for all other countries hovered at 49.4 percent.

Last year, in 2013, out of 9,206 requests, only 126, or 1.4 percent, were approved.

The slim chances have inspired some potential asylum-seekers such as Carlos Gutierrez,whose legs were sliced off after he refused to pay extortion money to organized crime in Chihuahua, to raise awareness by staging media-friendly events. Last fall, he rode a bicycle, using prosthetic legs, from El Paso to Austin, Texas, to raise awareness around the plight of himself and his fellow countrymen.”If someone from Cuba or from Venezuela can get asylum, why not someone from Mexico?” Gutierrez told Associated Press reporter Juan Carlos Llorca, who reported a 25 percent asylum approval rate for Venezuelans and Colombians.The dismal approval rate for Mexicans in general, combined with the mandate for expedited removal, leaves Mexican migrant kids with few options.If, like Central American kids, Mexican youth were transferred into the custody of the Office of Refugees and Resettlement, it’s likely that more would be found eligible for relief.A 2012 study by the Vera Institute examined a wide sample of unaccompanied children under ORR custody, concluding that around 40 percent could potentially gain relief, in the form of asylum, special immigrant juvenile status, or with visas granted to victims of trafficking or crime.

Because Mexican kids never enter ORR custody, their chances of understanding and subsequently applying for legal relief are limited.

“I don’t think it’s fair at all,” Dr. Castañeda says. “A lot of unaccompanied minors from Mexico share the same conditions of risk, of already being victims. They should be given a chance to prove that.”

But many, especially in Washington, disagree.

President Obama now appears to be favoring a policy that could narrow immigrant children’s ability to obtain legal relief, processing Central Americans kids in a way more similar to Mexican kids. White House officials have said Obama hopes to change the guidelines set forth by the TVPRA, in order to “fast-track deportation decisions” — expediting them for all migrant kids, not just Mexicans.

In a July 10, 2014 speech made from the U.S-Mexico border, Obama said that his administration intended to “do the right thing by these children,” although it was “unlikely…. [they] will be able to stay.” He noted he was asking Congress “to give us flexibility to move migrants through the system faster.” No specific details were mentioned.

A new House working group chaired by Texas Republican Kay Granger is scheduled to provide their first update on “the humanitarian crisis at the southern border” on July 15.

Other politicians, such as Republican Raul Labrador of Idaho, urge the Obama administration to “immediately deport these families, these children.”

But the suggestion of broad expedited removal has been met with outrage from child welfare and immigration advocates.

In a press release, the American Immigration Lawyers Association (AILA) condemned the Obama administration for considering plans to speedily “return migrant children to danger,” saying it was “simply unconscionable.”

And to kids like Kevin, the danger isn’t simply the returning. It’s the staying.

The day I spoke to him, he told me he planned to leave Mexico the next day, crossing the entire northern border from west to east all the way to Monterrey, Nuevo León.

There, somehow, he would try crossing again.

“I don’t know where I’m going to go,” Kevin said quietly, balling one hand into a fist and resting it lightly on his jeans. “Because I can’t go back to Guerrero, the way things are there.”

————–*Name has been changed
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