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Children at the Gates

By Kari Santos | Oct. 2, 2014

Law Office Management

Oct. 2, 2014

Children at the Gates

As the U.S. Border Patrol intercepts thousands of unaccompanied children from Central America, circuit courts are redefining standards for granting asylum.

By midsummer, an unprecedented tide of 57,000 children - three-quarters of them from Central America - had crossed into the United States this fiscal year by themselves. Another 22,000 were detained at the border with their parents. After President Obama declared a "humanitarian crisis" June 30, Homeland Security Secretary Jeh Johnson testified that unaccompanied minors were being caught at the border at a rate of 10,000 a month.

This children's army appeared at the border as drug violence rose across Central America. In 2011 the U.S. Drug Enforcement Administration warned Congress that Mexico's powerful Sinaloa and Los Zetas cartels had expanded into Honduras,

Guatemala, and El Salvador, using those countries as transit points for South American cocaine, heroin, and methamphetamine chemicals bound for the United States. Gang activity in the three nations had put their respective murder rates among the top five in the world.

For many Central American youth, the violent drug cartels and their affiliate gangs presented a Hobson's choice: Either submit to coercive recruitment to avoid beatings or worse, or attempt an arduous journey north to Texas's Rio Grande Valley, Arizona, or California.

In 2013 U.S. government agents at the Mexico border apprehended 35,000 unaccompanied children - the vast majority from Central America. (Previously, the majority of unaccompanied children came from Mexico.) That number has nearly doubled so far this year.

"The worst is over for now," Johnson said last month after the monthly total of children detained by Border Patrol agents fell in August to 3,141. But he called for sustained vigilance to prevent another spike in 2015.

Under the Trafficking Victims Protection Act of 2000 (22 U.S.C. §§ 7101-7113), children intercepted at the U.S. border are eligible for special custody and release arrangements. In addition, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (Pub. L. No. 110-457) prohibits the federal government from deporting minors from noncontiguous countries - all countries except Canada and Mexico - without adjudication in removal proceedings.

Now with the right to a formal hearing before repatriation, child immigrants from Central America increasingly are petitioning for asylum based on membership in a "particular social group" - that is, individuals who resisted gang recruiters or testified against gang members and then fled their communities to avoid violence. Since December 2009, four federal circuits - including the Ninth Circuit - have expanded recognition of such asylum claims, provided the petitioners demonstrate "social visibility" verifying this association.

To qualify for asylum under the Immigration and Nationality Act (INA), an alien must prove a well-founded fear of persecution in his or her homeland based on "race, religion, nationality, membership in a particular social group, or political opinion." (8 U.S.C. § 1101(a)(42)(A).)

But the term "particular social group" remains ambiguous. The Board of Immigration Appeals (BIA) first interpreted the phrase as referring to a group of persons who share an immutable characteristic (such as gender) or a characteristic so fundamental to identity that they cannot or should not be required to change (such as race or sexual orientation). (Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985). In addition, the BIA said the social group must be "particular" and "socially visible." But it did not recognize as a social group those who spurned gangs or drug cartels.

In 2006 the BIA denied asylum for noncriminal informants working against the Cali drug cartel who had not been discovered by members of the cartel or appeared as witnesses against it - because informants, the court reasoned, were not literally visible. (Matter of C-A-, 23 I. & N. Dec. 951, 959 (BIA 2006).)

Two years later the BIA denied asylum to three siblings faced with retaliation from the violent Mara Salvatrucha (MS-13) gang after they rejected recruitment in El Salvador. The BIA said gang rejection was "too amorphous" and lacked "particularity" because the social group was made up of a "potentially large and diffuse segment of society." (Matter of S-E-G, 24 I. & N. Dec. 579, 585 (BIA 2008).)

But the Seventh Circuit rejected rigid use of the "social visibility" standard as unreasonable. (Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009).) Two years later the Seventh Circuit was joined by the Third Circuit, which struck down the visibility requirement. (Valdiviezo-Galdamez v. Holder, 663 F.3d 582 (3d Cir. 2011).)

The Ninth Circuit - with the largest immigration docket in the country - declined to reject social visibility and particularity, but it clarified that a particular social group need not be homogeneous. In a case last year, it vacated BIA denial of asylum to a 12-year-old Salvadoran who saw her father murdered by gang members and testified against them. After the girl was threatened multiple times by the gang and by one of her father's killers, she fled to the United States. The BIA denied her petition, stating that her claimed particular social group - those opposed to gangs - was too amorphous.

In a 9-2 en banc decision written by Judge Carlos T. Bea, the court found that the BIA had failed to follow its own precedent on "social visibility" and "particularity" as stated in C-A- and its progeny. Bea held that social visibility does not require literal visibility, but said courts should consider how others view a particular social group. "We believe that the perception of the persecutors may matter the most," wrote Bea, himself an immigrant from Cuba. (Henriquez-Rivas v. Holder, 707 F.3d 1081, 1089 (9th Cir. 2013).)

In dissent, however, Chief Judge Alex Kozinski reminded his colleagues that the U.S. Supreme Court had recently summarily reversed another Ninth Circuit asylum case. Wrote Kozinski, "[I]t's the BIA, not we, who must decide whether a petitioner is a member of a particular social group for purposes of asylum." (707 F.3d at 1094; see Gonzales v. Thomas, 547 U.S. 183 (2006) (per curiam).)

Later in 2013, the First Circuit followed Kozinski's advice. A Salvadoran immigrant who joined Boston's violent 18th Street gang at age 16 later had a religious conversion and renounced membership. The youth applied for asylum, claiming he feared retribution by the gang's branch in El Salvador if he were deported. An immigration judge refused to recognize former gang members as a protected social group eligible for asylum, and the First Circuit affirmed. (Cantarero v. Holder, 734 F.3d 82 (1st Cir. 2013).)

Since then, however, all other federal circuit courts have adopted the Ninth Circuit's approach to social visibility, or have declined to address it. In January the conservative Fourth Circuit vacated a BIA decision, allowing a former MS-13 gang member to seek asylum because he had renounced the gang and feared he would be killed if he were sent back to El Salvador. Julio Martinez had worked as an informant for the FBI but was "no longer useful." After the BIA denied asylum the Fourth Circuit reversed, holding that Martinez's former gang membership was an "immutable" characteristic that could only change by rejoining the gang. The circuit recognized as a particular social group those former members of MS-13 who have renounced gang membership. (Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014).)

In May another Ninth Circuit panel reinstated a grant of asylum to a Guatamalan youth who resisted pressure to join a gang and encouraged his brother to renounce his membership. An immigration judge had determined that the youth had a well-founded fear of persecution as a member of a particular social group, but the BIA vacated the finding of eligibility, holding that his social group lacked particularity.

On appeal, Judge Stephen Reinhardt, writing for a unanimous panel, vacated and remanded the case. The panel held that the BIA had not performed the required evidence-based inquiry as to whether the relevant segment of society recognized the youth's particular social group. (Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014).)

Case-by-Case Reviews
The Ninth Circuit rulings in Henriquez-Rivas and Pirir-Boc "are very important decisions," says Lisa Frydman, associate director and managing attorney of the Center for Gender and Refugee Studies at UC Hastings law school in San Francisco. Frydman, principal author of A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System (UC Hastings, Feb. 2014), says that in response to Henriquez-Rivas, the BIA has clarified its rule for determining the visibility of social groups. And the Pirir-Boc case, she says, clarifies that the BIA must make case-by-case determinations of social group status.

Saad Ahmad, an immigration lawyer at Saad Ahmad & Associates in Fremont who argued Henriquez-Rivas on appeal, adds that the BIA is now far more receptive to case-by-case review of claims by petitioners fleeing gangs than it is to applicants asserting they are members of a protected social group.

But unaccompanied immigrant children still face significant hurdles in gaining asylum, Ahmad says. In addition to showing they belong to a particular social group, they must present evidence of a "well-founded fear of persecution on account of membership in that group." Unless they have effective assistance of counsel, he warns, they aren't likely to prevail on those complex claims.

A recent analysis by Syracuse University's Transactional Records Access Clearinghouse confirmed Ahmad's point. In the past decade nearly half of all minors represented by lawyers in immigration court eventually won permission to remain, the authors found. Without legal representation, nine out of ten were repatriated.

In hopes of establishing a right to counsel, the Northwest Immigrant Rights Project in Seattle filed a class action in July arguing that all unaccompanied immigrant children are entitled to legal representation in deportation hearings. (J.E.F.M. v. Holder, No. 14-CV-1026 (W.D. Wash. filed July 9, 2014).)

According to the complaint, immigrant children are forced to appear unrepresented against the government's lawyers in "a legal regime that, as the courts have recognized, rivals the Internal Revenue Code in its complexity." The attorneys argue that constitutional due process protections (as well as the INA, 8 U.S.C. § 1229a(b)) require the government to provide the children with lawyers, just as it does for minors facing juvenile delinquency charges.

"The government's overarching concern seems to be that we are opening the floodgates," says Matthew Adams, the project's legal director and co-counsel for the plaintiffs. Adams, however, contends the "vast majority" of Central American children's asylum claims are based on fleeing gang recruitment or retribution.

"Right now in Honduras, kids who turn ten, eleven, or twelve years old must decide whether to join a gang or to flee," he says. "The choice they have to deal with is often that black-and-white."

Zachary M. Nightingale, an immigration attorney with Van Der Hout, Brigagliano & Nightingale in San Francisco, says the government is prejudging or misjudging children at the border, routinely denying claims they are targeted by gangs. "I've had an expert testify that in El Salvador, gangs are now running people for political office," he adds.

Political Solutions
In this country, the tide of child immigrants from Central America, has generated intense political pressure to send unaccompanied minors back home without a hearing - the current standard for unattended children from Mexico.

In July, for instance, the Obama administration asked Congress for $3.7 billion in emergency funds to deal with child immigrants, including $1.8 billion for shelter and $879 million for detention, prosecution, and repatriation. But House Republicans have refused to support financial relief unless the 2008 anti-trafficking law is amended so that children from noncontiguous countries can be returned without a hearing.

Rather than concede due process rights for children, the administration has ordered courts to create special dockets intended to bring recently arrived minors before an immigration judge within 21 days of being placed in deportation proceedings. The so-called "rocket docket" has raised concerns that it, too, deprives immigrant children of due process.

In late August, Gov. Jerry Brown, Attorney General Kamala Harris, and legislative leaders announced a package of bills that would provide $3 million to qualified nonprofits for legal services to unaccompanied minors. "Helping these young people navigate our legal system is the decent thing to do," Brown said.

Meanwhile, Secretary Johnson of Homeland Security made clear just how strongly his department, which is responsible for enforcement and removal operations, resists case-by-case review of asylum claims. "For unaccompanied children," he told a congressional committee, "we believe that a majority will not qualify for any form of humanitarian relief and, looking at the statistics, that most of them must be and will be removed."

Pamela A. MacLean is a contributing writer at California Lawyer.


Kari Santos

Daily Journal Staff Writer

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