WASHINGTON - Most of the thousands of unaccompanied children arriving at the U.S.-Mexico border have no chance of winning legal status in the U.S. if the government does not provide them with lawyers, immigration experts say.
These children arriving at the border and many of the guardians they are being released to have poor knowledge of the U.S. immigration system, Andrea Rodriguez, legal director of the Central American Resource Center(CARECEN), said.
This means that many children, most of whom have valid asylum and other relief claims, won't get them, she said. A Pew Research Center report says most of the children are under age 12.
"I think a lot of the kids, if given their say in court, would be able to stay here lawfully," Rodriguez said.
The Department of Homeland Security predicts almost 60,000 unaccompanied children will arrive this year at the Southwest border – mostly from Honduras, El Salvador and Guatemala. Many of the children are fleeing gang violence and poor economic opportunities.
Sixty percent have potential claims for international protection and must have access to the U.S. asylum system, according to the United Nations High Commissioner for Refugees.
In a congressional hearing earlier this month, Secretary of Homeland Security Jeh Johnson emphasized the administration's efforts to treat the children in a humanitarian manner, but he made it clear that most will be sent home.
"Every child will retain the right, like adults, to assert a claim of asylum or seek other protections. But, unless the child has been granted asylum or some other protection in this country – and the vast majority will not – he or she will be sent back," Johnson said.
Under a 2008 human rights law signed by former president George W. Bush, all Central American children arriving at the border are entitled to an immigration court hearing. This gives them a chance to apply for asylum, Special Immigrant Juvenile Status and certain other visas.
"But these can be very difficult to prove – especially without a lawyer. It is extremely tough to get information from their home countries and obtain important papers or witnesses," Megan McKenna, communications and advocacy director at Kids In Need of Defense, which provides legal counsel for unaccompanied children.
To obtain asylum, the children must pass an interview with an asylum officer and prove a fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group in their home countries, according to DHS. They can apply for the special juvenile status if they have been abused, abandoned or neglected by guardians in their home countries, but this may not apply to children who are fleeing gang violence, Rodriguez said.
Immigration lawyers said children have two other options. To obtain a T visa children must prove they are victims of trafficking, and to obtain a U visa they must have been a victim of a crime in the U.S.
The 10,000 annual cap on U visas has been reached this year for the fifth year in a row. DHS does not release the number of people on the waiting list.
"Some children find legal representation through advocacy organizations and pro bono law programs. But more than half must navigate this undeniably complicated adversarial system without an attorney while using an unfamiliar language," according to a report released by KIND.
The Executive Office of Immigration Review, part of the Justice Department said it an email it "will continue to adapt appropriately, and concentrate on fair and expeditious hearings."
As of June, about 5,000 cases have been filed in immigration courts involving Guatemalan children. Nearly all are pending – 48 children were deported, and six were allowed to stay in the U.S.
Many hearings do not take place until two or three years after children are given a notice to appear in court, Rodriguez said. This has some lawmakers concerned that the children won't show up.
In immigration cases filed in 2013 that involved Guatemalan children, 16 percent didn't show up. That number drops to 10 percent for cases involving Hondurans and 8 percent for cases involving Salvadorans, according to Syracuse University's TRAC Immigration Database.
The Washington area is home to the second-largest Salvadoran community in the U.S., Rodriguez said, and many Salvadoran parents and guardians arrive at her office "distraught and in tears" after their children have arrived at the border. They want their children live with them. Immigration judges were swamped before the crisis started, and they usually spend just minutes hearing the cases of each unaccompanied child, Rodriguez said, making it difficult to prove an asylum or relief case.
Sitting amid stacks of paperwork, Rodriguez said CARCEN is doing everything it can to give parents of unaccompanied children hope, but "there are only so many pro bono attorneys you can get."
The Executive office of Immigration Review provides a list of free legal services by state on its website.
In a study analyzing data on 100,000 juvenile cases in immigrant courts, the TRAC database, found that when a child appeared without a lawyer, nine out of 10 were deported.
The government is not legally mandated to provide representation for unaccompanied children – something Rep. Beto O'Rourke, D-Texas, said needs to change.
"If a child has an attorney, they are more likely to appear at a hearing," O'Rourke said.
Mandating lawyers would speed up the adjudication process and reduce the amount of money the government spends on housing the children, O'Rourke said. He is a cosponsor of a bill that would require the government to provide legal counsel for unaccompanied children.
Lawmakers concerned with the influx of children have proposed altering the Trafficking Victims Protection Act, the 2008 human rights law that guarantees Central American children an immigration hearing. A bill introduced this month by Rep. Lamar Smith, R-Texas, would eliminate this requirement and put Central American children into the same immediate deportation proceedings as children from Mexico.
"Our proposal expedites deportations and drastically restricts measures by which individuals might try to falsely claim asylum. I will continue to urge the president to take common-sense steps to clean up the mess that he created," Smith said in a press release.
Carlos Spector, an immigration lawyer in El Paso, Texas, said a change in this law would be a guaranteed failure.
Spector said CBP officers are not trained to conduct credible-fear questioning, a short interview to determine if a child is fleeing persecution in his or her home country. CBP officers often pressure Mexican children not to seek relief – something he said they will certainly apply to Central American children if the 2008 law is changed.
CBP did not respond to requests for an interview.
Lately, Rodriguez said most parents hoping their children can stay in the U.S. will be disappointed because the children can't qualify for any of the four categories that would allow them to stay.
"It's draining. You worry about it. I'm not the only one, but sometimes you have dreams about your cases that you worry about," she said.
Reach reporter Anna Giles at firstname.lastname@example.org or 202-326-9861. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire.