They miss their parents, whom they haven’t seen in years. Or they’re escaping poverty and neglect, or violence. So the kids come across the border by themselves—and their numbers are increasing, even as illegal immigration trends down or stays flat.
In 2008, U.S. Customs and Border Protection apprehended 8,041 unaccompanied minors attempting to cross the border; in 2012, that number was 24,481.
A little under half, about 10,500 young border crossers, came from Mexico in 2012. Most Mexican kids are quickly repatriated, says Elizabeth G. Kennedy, a researcher and social scientist at San Diego State University. But the remainder, almost 14,000 unaccompanied minors in 2012 alone, are children predominantly from increasingly violent Central American countries.
The journey north is harrowing, says Kennedy, who recently published an article in the Journal of the American Medical Association detailing the fragile mental states of young border crossers. On the trains and trails, some are raped, drugged, maimed, and robbed, she says. The lucky ones arrive in planes and then are nabbed by border authorities at the airport.
After apprehension by the Department of Homeland Security, all undocumented kid border crossers who don’t come from Mexico or Canada are shipped over to the Office of Refugee Resettlement, in the Department of Health and Human Services. There they’re resettled or reunited with relatives or guardians, all the while facing deportation proceedings in immigration court—and more than 50 percent do not have lawyers.
Miguel Garcia was one such kid. He fled Guatemala City, he tells The Daily Beast, after the notorious M18 gang tried to recruit him when he played soccer. When he declined, the gang shot his brother, mistaking him for Garcia. The brother remained permanently wounded and now has difficulty walking. The gang continued to threaten the Garcia family, demanding enormous sums of money for the privilege of living in the neighborhood. At the time, Miguel Garcia was 16 years old. He figured if he left Guatemala, M18 would leave him and his family alone.
After a brutal journey through Mexico, he was apprehended near the border in Texas. He spent a few weeks at an Office of Refugee Resettlement facility, then was turned over to his uncle in California. Garcia’s uncle, Luis, cleans swimming pools for a living and could not afford the $5,000 that private lawyers wanted to take the case.
The plight of a growing number of kids like Garcia is finally being discussed on Capitol Hill. At a March 6 Senate hearing, Sen. Al Franken (D-MN) asked U.S. Attorney General Eric Holder if the Justice Department might take over from the Department of Health and Human Services the responsibility of finding lawyers for the children.
Holder seemed willing but pointed out that DOJ needed extra funding to take on the responsibility. “It is inexcusable that young kids ... have immigration decisions made on their behalf, against them, whatever, and they’re not represented by counsel,” he said.
Paradoxically, many of the children are likely eligible to stay in the United States via asylum, special visas, or green cards.
“That’s not who we are as a nation,” Holder added. “It is not the way in which we do things.”
Franken brought up the topic again at a second Senate hearing March 18, though no action has been formally proposed.
Kids without lawyers often don’t know “what’s going on” with their immigration cases, says Kennedy.
In 2008, the Office of Refugee Resettlement oversaw 6,658 unaccompanied undocumented children; by 2012, the number had soared to 13,625 kids. This year is on track for a record—so far, 6,965 unaccompanied border crossers have arrived at the Office of Refugee Resettlement’s doorstep.
Through paid contractors, the kids are housed, counseled, educated, and reunited, if possible, with their parents or guardians. Paradoxically, many of the children are likely eligible to stay in the United States via asylum, special visas, or green cards.
So why don’t they all have lawyers? It all comes down to money. The government can’t pay their legal fees because the kids are undocumented.
As a result, kids either must hire expensive private attorneys most can’t afford or rely on pro bono counsel provided by nonprofits like Kids in Need of Defense, or KIND, which scrambles to find more and more pro-bono private lawyers to take up the surging caseload. (The nonprofit was co-founded in 2008 by Microsoft and Angelina Jolie, after Jolie visited a kids’ detention center in Arizona.) Even as KIND finds more lawyers, it can’t keep up with the numbers in need, notes Wendy Young, the group’s executive director.
The lawyer shortage is frustrating as well for Maria Woltjen, the director of the Young Center for Immigrant Children’s Rights at the University of Chicago Law School, which serves as sort of guardian ad litum for the most vulnerable children in immigration removal proceedings. The center has advocated for children as young as 18 months old, she says, but most are teenagers. “I’m hopeful that lawyers will soon be available to represent all these children,” she says.
“I can’t even imagine what they’ve been through," says Jessica Marek, a California-based lawyer for Simpson, Thacher & Bartlett, which encouraged her to take on pro bono undocumented kid cases, even though she specializes in business law. She’s only four years out of law school, but she’s won three green cards for three clients.
One of of successful clients was young Miguel Garcia, who got a green card after KIND referred him to Marek.
Still, it’s often all but impossible to tell how well most pro bono lawyers represent the new influx of undocumented kids. In Arizona, for instance, the Florence Immigrant and Refugee Rights Project at first did not respond to and then declined repeated requests, over several weeks, for interviews for this story. Spokeswoman Tally Kingsworth said in an email that “our office generally only provides statements to the press when we initiate the contact.”
Although hundreds of kids are housed by the Office of Refugee Resettlement in Phoenix, program directors there are skittish about granting press interviews. One responded to an interview request by email, then passed it on to the Office of Refugee Resettlement. The office declined to allow The Daily Beast to interview the director or visit a shelter where the children live, although assurances were made that the undocumented immigrants would not be identified in a story.
It’s unclear whether Democrats will succeed in including these children in immigration-reform legislation. Two vociferous opponents of current immigration reform efforts, including Sen. Jeff Sessions (R-AL) and the Federation for American Immigration Reform, did not respond to requests for interviews for this story. The Office of Refugee Resettlement also remains mum. “I’m afraid I don’t have anything to offer regarding Senator Franken’s proposal,” Ted Froats, a spokesman for the Administration for Children and Families, which oversees the Office of Refugee Resettlement, said via email.
Miguel Garcia, for his part, can’t imagine handling his immigration case without a lawyer. He deeply misses his mother in Guatemala. During phone calls home, he tells his mother he loves her and engages in small talk. He says he never asks her whether M18 is still harassing the family. He couldn’t bear to know.