When two stories are in the news with some facially similar issues, people tend to mix them together into one big story that makes little sense because the two stories are hardly related. A good example is Hillary Clinton and emails. There were two email stories. One was about Ms. Clinton’s using a private email server for some government email. The concern was that email that was classified could have been compromised. Then, there was the story that email from the Democratic National Committee were hacked and then published by Wikileaks. As the two became conflated in people’s minds, somehow the popular perception became one of Hillary’s lax email habits resulted in confidential information being released on Wikileaks. What emails her opponents were upset about became a big muddle.
Another example are the stories of Julian Assange and Edward Snowden. Julian Assange, an Australian citizen, is living at the Ecuadorian Embassy in London because he fears arrest for his role in leaking secure American government communications. Once a popular figure, his reputation as a force for good is harmed because of his role in publishing on Wikileaks of Democratic Party emails hacked by the Russians and his connections to people close to President Trump who also had communication with Wikileaks, giving the appearance that he used Wikileaks to harm Hillary Clinton’s campaign and colluded with Russians to do so.
Edward Snowden, and American citizen, leaked NSA documentation about covert listening programs about which the American people knew nothing and which were illegal. He is now living in Russia, fearing arrest for stealing secure information. To many Americans, the two stories are intertwined and Edward Snowden is somehow implicated in colluding with Russia (after all, he lives in Russia) to destroy American democracy and is thus reviled rather than praised for exposing illegal activity by the government. Mix a little Chelsea Manning, formerly Bradley Edward Manning, another leaker, into the story and you have a real stew of confusion. Like I said, it makes little sense.
Now, we have two immigration stories in the news, blended into one big cuckoo story. The first is that the United States government is separating children from their parents. This story is that the United States Department of Justice is prosecuting nearly anyone it can for illegal entry into the United States based on 18 U.S.C. § 1325(a), which states:
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
If a person illegally enters or attempts entry with a child in tow, the person is subject to prosecution for alien smuggling under 18 U.S.C. § 1324(a)(1)(A)(I), which states:
Any person who knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien… shall be punished….
When arresting people who have entered illegally or having attempted to do so, like anyone arrested and detained for criminal prosecution, their children are not detained with them. The children are not just left on the country road or river bank their parents are arrested by. Rather, foster care, care facilities, or relatives are located to care for the children. As arrangements take time, the kids endure hardships while waiting to be housed in addition to the trauma of being separated from parents and foisted on relatives they have never met before.
This criminal prosecution is separate from the other big story, about the missing children. This story is an immigration story, not a criminal law story. Children, under age 18, chiefly from Central American countries, come to the United States border seeking protection from, among other things, domestic violence, gangs, crime, and government corruption. When they come to the border, they are arrested. The regulatory framework requires they be interviewed by an asylum officer and then sent to an immigration court if they pass. Then, through the Office of Refugee Resettlement (ORR), part of the federal Department of Health and Human services, qualified sponsors, usually relatives, are located to care for these children. ORR’s concern is not the legal status of the relatives, but to find people to care for the children. If no relative can be found, the child is sent to a foster care facility. There is a scarcity of such facilities, so placing children with relatives is a priority. The idea is that the children are with relatives who then bring the children to the immigration court where they can pursue relief from being removed. The usual forms of relief are asylum and Special Immigrant Juvenile (SIJ) Status for children the victims of abuse, abandonment, and neglect, and more rarely, T status if they are victims of trafficking and U status if a victim of crime, or, also rare, family-based immigration. The grim reality is that few of these children qualify for any of these forms of relief and are either returned to their countries with removal orders or voluntarily returned.
Once ORR places these unaccompanied minor children, their job is essentially done. ORR tried to get in contact with some of these children and their relative guardians, and could not locate 1,500 of them. Hence stories of the government losing children. While it is certainly possible that some of these children were handed over to abusive relatives who are enslaving and exploiting them, it is also likely that many of these families moved, their cell phone numbers changed, or, the families, knowing the end game was not going to be in the child’s favor, ducked government contact. In the age of Donald Trump, it is certainly not irrational for an undocumented Honduran family suddenly handed a niece fearing for her life and safety by the United States government but ultimately ineligible to stay in this country, would be reticent about maintaining contact with a government determined to deport all undocumented aliens. Older kids may just take off. Anyone who deals with groups of people know that a certain number will disappear.
Separating children from parents being prosecuted for illegal entry and unaccompanied minors falling through the cracks are separate stories. There is some mingling. Some families applying for asylum at a border who did not attempt illegal entry and are not being prosecuted for illegal entry or alien smuggling have experienced the separation of children and parents, such as one case in publicized in San Diego. Further, it is not clear what happens to the children separated from their parents when the parents are criminally prosecuted after the parents are prosecuted and punished. If the parents want to make asylum claims, are they moved to immigration detentions facilities and reunited with their children? Are the children detained with the parents? Are the parents, already punished criminally, released so they can pursue asylum claims? Does the government take responsibility for reuniting the kids with their parents? A lot of unknowns.
Though there are a lot of bad parts to these stories – families and unaccompanied minors having to flee chaos in their homeland; people fleeing oppression prosecuted rather than protected; children separated from parents; and a system that provides no remedies for people fleeing for their lives for the wrong reasons – one of the worse parts in all of this shuffling around of children is that it often results in the children losing even the opportunity to seek relief in immigration court. Here’s why.
As noted, unaccompanied minors as well as children separated from their parents at the border are sent to immigration court. Their relatives, some undocumented, many poor, peripatetic, unschooled in immigration law, and too poor or too remote located to find attorneys for their new wards, don’t get or heed immigration court notices for the children to appear in immigration court. As a result, the children are ordered removed in their absence. Under the immigration laws, an in absentia order can be rescinded if there is lack of notice or exceptional circumstances. Exceptional circumstance issues must be raised in a motion within 180 days of the in absentia order being issued. Children rarely learn of their in absentia orders within 180 days, and even if they did, their family’s failure to bring them to court is likely not an exceptional circumstance.
One might think that if the child does not get mail or read mail or have the capacity to understand anything about the system or have control over attending a hearing or not, then it would be easy to show that he indeed did not get notice of this hearing, the removal order would be rescinded, and he could pursue relief in immigration court. If one thought this, he would have thought wrong. Courts have held that notice to the guardian is notice to the child and the child’s failure to appear cannot be excused because of the actions or inactions of the guardian.
In fact, in a recent decision of Attorney General Jefferson Sessions, Matter of Castro-Tum, Mr. Sessions determined that an immigration judge who administratively closed a removal proceeding for a minor not brought to immigration court exceeded his authority and must order the deportation of the absent child. In Castro-Tum, the hearing notice was sent to the child. He was 17 years old and regulations require service on the guardian only if the child is under 14 years old. 8 CFR § 103.8(c)(2)(ii). In cases where the child is under age 14, service on the parent or guardian is deemed effective service.
After enduring the hardship of the grueling and dangerous trip from Central America to the United States, undergoing detention after first arriving, then being housed with relatives they may have never met and risking exploitation, and then not being brought to immigration court, the children then lose all right to pursue what limited relief may be available to them because they were ordered deported in their absence.
If there is a bright side to the fate of the vast majority of children coming to the United States, I don’t know what it is. Posted June 3, 2018.