Desireé Hernández, Safe Passage Project’s Deputy Executive Director and Director of Legal Services, joined WNYC this morning to discuss the drops in asylum grants for unaccompanied minors. Read the full story by WNYC below, or listen here.

Unaccompanied Minors Have Tougher Time Winning Asylum

Immigrants win asylum more often in New York than anywhere else when they go to court. But not when immigrant childen seek a less adversarial path through a government agency, according to an analysis by WNYC News.

Unaccompanied minors — children who come to the US without parents — are not to be confused with those who are separated from their parents when they come to the U.S. border. The ones who come alone are kept in the care of special agencies through the Office of Refugee Resettlement until they can be reunited with a relative. They then have to fight to stay here just like adults by going to immigration court. But a special law to protect victims of trafficking lets these unaccompanied minors simultaneously apply for asylum with U.S. Citizenship and Immigration Services, or USCIS.

Attorney Jodi Ziesemer, supervising attorney with the unaccompanied minors program at Catholic Charities, said this is less traumatic for children because it puts them before a trained asylum officer.

“Instead of testifying in open court, being cross-examined by a trained government attorney, having to present witnesses and evidence to meet the standards in immigration court, they can present their case in front of an asylum officer,” she explained. Children can also bring their own translator.

So far this fiscal year, just 21 percent of kids who applied for asylum were granted it at the USCIS office in New York. Two years ago, it was 38 percent. Unaccompanied minors in New York are also served by the New Jersey office of USCIS, where asylum grant rates have fallen even more in the first half of fiscal year 2018. It’s 32 percent now versus 70 percent in the first half of fiscal year 2016. This reflects a national trend.

The Trump administration is cracking down on a surge in border crossers this year, after the numbers declined in 2017. President Donald Trump calls the asylum process for young trafficking victims a “loophole” that can be abused by gang members. (This explainer by FactCheck.Org describes different immigration policies the President has criticized, which date back many years.)

In February, USCIS began scheduling new cases faster to reduce its backlog of more than 300,000 cases and weed out what it calls frivolous applications. At the same time, immigration judges have been under pressure to move more swiftly because of their own backlog. Lawyers said that unaccompanied minors, who remain on judges’ dockets while they ask USCIS for asylum, are being rushed along as a result.

But Attorney Ziesemer said these policies alone don’t explain the declining number of kids granted asylum. She’s noticed something else.

“The asylum office seems to be doing extra background checks, extra security checks,” she said. “That has been reflected in the asylum interviews as well, that they’re asking many more detailed questions about any contact with criminals or gangs.”

A spokeswoman for USCIS said there’s no change in policy, and each child’s case is different. But Desiree Hernandez, deputy director of the Safe Passage Project which represents children, said some cases that would have been approved before are denied now. She has one client who’s about 14 years old and described being raped by family members in her remote indigenous community.

“This child is very articulate even through the trauma that she has survived, and was able to tell her story at the asylum office,” she recalled. “And the asylum office referred her case to the judge.”

That child still has an attorney who can fight her case in court. But others don’t. New data from TRAC at Syracuse University show that young asylum seekers have a harder time now finding lawyers, even in New York, which could also explain the drop in asylum grants. Without lawyers coaching them on how to tell their stories to an officer and to help gathering medical and psychological records, those children stand a tougher chance when they go before asylum officers at USCIS.

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You can read or listen to the full story here.

https://www.reuters.com/article/us-usa-immigration-children/trump-administration-will-fingerprint-child-migrants-parents-idUSKCN1IU2VF

Trump administration will fingerprint child migrants’ parents

WASHINGTON (Reuters) – The Trump administration will soon begin fingerprinting parents claiming custody of children who entered the United States illegally without an adult relative, officials said on Tuesday, prompting criticism that children may be abandoned by those who fear being identified and deported.

Currently, most parents are not required to be fingerprinted to get custody of their children.

U.S. laws and legal precedent limit the time juveniles can be detained, so those caught crossing the border alone are often released to adult sponsors in the United States. The children are then expected to show up to immigration court to fight their deportation cases.

“We’re going to more thoroughly vet sponsors,” said Steven Wagner, acting assistant secretary of the Department of Health and Human Services’ (HHS) Administration for Children and Families, in a telephone briefing with reporters. “With DHS’ cooperation we will conduct a fingerprint-based background check on every sponsor.”

HHS is ultimately responsible for finding housing for migrant children, and the Department of Homeland Security (DHS) enforces immigration policy. Under a new memorandum, DHS would help HHS fingerprint every individual claiming custody of a child, senior officials said.

A DHS official who declined to be named said they expect implementation in a few weeks.

Immigrant advocates said the new policy would discourage parents from claiming their children.

“This policy will undoubtedly make it more likely that qualified sponsors will hide in the shadows, leaving vulnerable young children to languish in immigration jail,” said Rich Leimsider, executive director of the Safe Passage Project, which represents immigrant children in New York, in an email to Reuters.

Wagner, during the briefing, dismissed such concerns.

“If somebody is unwilling to claim their child from custody because they’re concerned about their own immigration status, I think that de facto calls into question whether they’re an adequate sponsor and whether we should be releasing the child to that person,” Wagner said.

In March and April, more than 50,000 people were detained per month trying to cross the southwest border illegally, levels similar to those during the administration of Barack Obama, according to U.S. government figures. During those two months a total of about 8,400 unaccompanied minors were caught on the southwest border.

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To read the full story, click here.

Yesterday, Attorney General Sessions issued his decision in a case involving an unaccompanied minor who failed to attend his removal hearing. In Matter of Castro-Tum, 27 I & N Dec. 271 (May 17, 2018), the Attorney General ruled that an Immigration Judge has no regulatory or legal authority to grant “administrative closure.” Administrative closure does not dismiss the case, but rather moves it to a suspended status. For the court, it allowed the judge to count the case as finished on his or her docket. For the party – either DHS or the responding individual – a motion could later be filed to recalendar the case, should new developments suggest that the case could be resolved.  For example, DHS sometimes requested administrative closure if they determined that they wanted to grant prosecutorial discretion (a right to live here but not a grant of legal status). Safe Passage Project regularly sought administrative closure for young people who were granted special immigrant juvenile findings in immigration court, but when the visa petition for Special Immigrant Juvenile Status (form I-360) would still be pending for many months before the USCIS.

It was already quite distressing that the Attorney General took this case as the focus of his decision to visit the authority of immigration judges to grant “administrative closure,” because the young person was pro se, and the case reflected a very unusual use of administrative closure. There were 12 amici briefs filed in this case, and we are grateful to the law firm of Simpson Thacher and especially to Sara Clingan, who was the primary author on the brief.  It does appear that the Attorney General evaluated the thoughtful arguments presented in the brief regarding the administrative law problems inherent in eliminating Administrative Closure without engaging in procedural compliance with the APA to modify the practice through rulemaking. He does discuss the power of the Attorney General to reverse the BIA and to control the operations of the individual immigration judges. With this case, he also vacates all the other BIA decisions that allowed judges to grant administrative closure over the objections of DHS.

The only good news in the case is that the Attorney General did not retroactively rescind the administrative closure of prior cases. He will, however, allow the cases to be re-calendared upon motion of the parties. If DHS decides to reactivate all of these cases, it is likely to swamp the immigration courts. But the Attorney General does not (or should not) control the decisions of the DHS, and it is too early to tell what their responses will be.

One of the disturbing issues presented in this case that was not properly identified by the Attorney General as under review, is the definition of who is an “unaccompanied alien child” (UC).  In a footnote, the Attorney General asserts that turning 18 ends the designation of UC protection, and that an issued legal guardianship by a brother-in-law (the young person’s sponsor once out of ORR custody) might similarly end the designation. “It is unclear whether the respondent’s brother-in-law was his legal guardian, such that the respondent would have ceased to qualify as an unaccompanied alien when his brother-in-law assumed custody on August 20, 2014. At a minimum, however, the respondent ceased to qualify as an unaccompanied alien child on January 10, 2015, his eighteenth birthday, two days after his first hearing date.”

This footnote is particularly concerning, and we should prepare for additional arguments – both by the USCIS Asylum Office and now the DHS – that a young person is no longer entitled to the UC protection which is important in seeking jurisdiction before the Asylum Office to hear claims.

As a long time reader of BIA and Attorney General decisions, this particular case is a departure from prior cases in tone. The Attorney General and his delegates want to specifically reject several 9th Circuit Court of Appeals cases that had relied in part on administrative closure to expand due process protections for people in removal. While the agency usually follows the doctrine of nonacquiescence and does not apply a single circuit law across the country, the Attorney General notes that he has the authority to force the 9th Circuit to reexamine its decisions as this is the final agency pronouncement on the role of administrative closure. Now the immigration judge will have to use continuances, which will be difficult as the management of the court – at the request of the Attorney General – has also instituted performance measures that punish judges who grant numerous continuances.

There are four other significant cases that were certified to the Attorney General.  We did not independently prepare a brief, but we did join in our nonprofit capacity (and I joined some in my law professor capacity).  These cases could also have deep and significant impact on our work. The Attorney General is also challenging the authority to grant continuances – the only option we have if DHS has not ruled on a child’s visa petition for status.  He is also reviewing the case law on people who are victims of private crime, e.g., domestic abuse, as qualifying for asylum. Yesterday, Jane Fonda and Professor Karen Musalo, one of the nation’s leading advocates for women in the asylum field had an Op-Ed in the New York Times discussing that issue.

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Lenni Benson is the Founder and Senior Advisor on Policy and Law at Safe Passage Project. She is also Professor of Law at New York Law School.

NPR recently aired a piece highlighting the plight of migrant teens in detention centers. They spoke with immigration advocates, including Safe Passage Project Founder, Lenni Benson to explore the challenges that these teens face.

You can listen to the piece and see the full transcript here.

This week, Crooked’s ‘Pod Save the People’ featured Stephanie Gibbs, Supervising Attorney at Safe Passage Project, to talk about some of the current issues that immigrant youth are facing. Hosted by DeRay Mckesson, this weekly podcast delves into social, political, and cultural issues with local and national experts, leaders and influencers. Stephanie joined Mckesson on the show along with Irma Solis at NYCLU to highlight some of the ways in which the DOJ, ICE and local police are putting immigrant children at greater risk of deportation. Stephanie shed light on the challenges presented by the current administration, including Attorney General Jeff Sessions’ efforts to restrict immigration judges’ ability to  administratively close cases.
You can listen to the full segment here, beginning at 39:00.