Little-known legal move could aid thousands of young refugees

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AUSTIN, Texas — Maria Aracely says she was pushed out of her home by her mother as her small town in western Honduras deteriorated into a place where gang members killed with machetes and charged a tax to live.

The 18-year-old fled with her infant daughter in March, taking buses through Guatemala and Mexico with the help of smugglers who guided her and other migrants through motels, warehouses and the homes of strangers. Once in Texas, she said, U.S. border agents detained them for five days at barren processing facilities near Brownsville and McAllen.

Now living with her older sisters outside of Austin, she is among hundreds of Central American children and teens turning to family and child welfare courts across the state as she seeks a little-known legal remedy for abused and neglected minors under 21: special immigrant juvenile status. Her last name is not being used because of her uncertain legal status.

For some of the thousands of young people like her, who have entered the United States in a recent refugee wave, that type of relief could provide a quicker path to lawful residency than pleading for asylum or fighting deportation in overburdened federal immigration courts.

But the rising number of petitions in Texas could pose challenges for state judges and attorneys, many of whom are unfamiliar with the process and, in the most difficult of cases, must rely on county resources to investigate claims, work with foreign consulates and connect children with medical treatment and counseling.

Child welfare judges say they have been preparing for the increase, and many believe their jurisdictions are better equipped to handle the needs and interests of minors because they have the power to appoint lawyers and caseworkers who understand child protection laws. But support for their courts could be tough to garner in some counties where government officials have taken pre-emptive stances to keep out young immigrants entirely, legal experts said.

Yet to judges, lawyers and advocates, the cases are a crucial second look at the lives of children who might otherwise disappear from the legal system and could land in the hands of abusers, said Tania Rosamond of the Bernardo Kohler Center, an Austin-based group that provides law services to Texas immigrants.

‘‘Some kids might not report to their court hearings, and we’ll never know what happened to them,” she said.

‘Meeting of two worlds‘

Texas judges in large urban counties and along the border said they began to see a shift in petitions for special immigrant juvenile status as long as two years ago.

The remedy has existed for more than two decades and was created to aid minors who fell into the custody of state courts and agencies. But tight eligibility requirements restricted who could apply until late 2008, when the William Wilberforce Trafficking Victims Protection Reauthorization Act spurred significant changes to the language in the federal statutes, so that they would not conflict with child protection laws in some states and the relief could be used in a wider range of jurisdictions.

Most petitions before then have tended to come through caseworkers and attorneys working with children swept up in divorce disputes, the juvenile justice system and child protective services investigations. Now a growing number of young people fleeing bloodshed and hardship in Mexico and Central America are requesting the remedy with the help of private immigration lawyers or family members.

Some judges said they have even had minors entering their courtrooms to inquire about the relief on their own. And as young people are moved to detention facilities farther across the state, judges in rural counties who typically do not hear special status petitions -- or might not have even heard of them -- are being asked to handle the claims.

Texas judges do not rule on immigration status. They are tasked only with determining whether a child or teen has been abused, neglected or abandoned and cannot be reunited with one or two parents. The court finding becomes part of the juvenile’s petition submitted to U.S. Citizenship and Immigration Services, which evaluates cases on a discretionary basis and ultimately decides whether to grant the relief based largely on factors in the family court case.

The federal citizenship office asks some children for more backup documentation than others, and response times vary, lawyers said. But if approved, minors generally receive their green cards, permitting them to have their federal deportation charges dismissed and to work and go to school.

As more lawyers and judges become aware of the remedy, Texas judges said they expect the number of petitions to further increase. Immigration lawyers and child welfare advocates across the state are already moving to offer judges and other attorneys information and resources on the applications. The Texas Children’s Commission just last month sent out a letter to more than 300 state judges explaining the process.

‘‘A lot of family lawyers and judges have never heard of special immigrant juvenile status, and immigration lawyers can handle everything to do with the immigration part of it but do not know family law,” Ms. Rosamond said. “The biggest challenge that we are seeing right now is the meeting of the two worlds.”

Texas had the second-highest number of petitions in the country last year behind New York, with 657 out of 3,443 nationwide granted, more than double from 2012, according to federal statistics. But immigration lawyers and advocates say those figures pale in comparison with the number of children who have crossed the border over the past three years and could qualify.

At least 57,000 unaccompanied minors have entered the country since October, and a report from the United Nations High Commissioner for Refugees estimated that of the 400 the agency interviewed, nearly 60 percent could be eligible for humanitarian protection under international standards because of the levels of violence in Honduras, El Salvador and Guatemala.

‘‘These kids face huge obstacles,” said Austin immigration attorney Tom Esparza, who represents Maria Aracely, the teen from western Honduras. “They need lawyers who can put the pieces together for them.”

While being interviewed in the mobile home she shares with her sister in southwestern Travis County, Maria Aracely said she was fortunate. Through a television commercial, she found Mr. Esparza, who learned that her father had died and that her disabled mother did not have the means to care for her.

Her small colonial town of Gracias had been known for its hot springs and lush mountains. But over five years, assaults and beatings became rampant, she told Mr. Esparza, and the only people making any money were drug pushers. “I knew my daughter would have no future if I stayed,” she said.

Mr. Esparza, who has represented hundreds of children in the 30 years he has practiced immigration law, said he realized the dangers she faced going back and recognized her as a candidate for the special status. Over four months, he helped her handle her immigration case at the regional court in San Antonio and introduced her to a family law attorney to start the process for relief.

Maria Aracely’s sisters, who work as waitresses at an Austin restaurant, paid both lawyers for their services. But not all children can afford an attorney to gather the proof they need to make their case.

Such petitions coming into state courts through private lawyers or filed by children without representation could be tougher for judges to handle because they do not already involve a team that can assist with verifying the claims and ensuring that the people petitioning on behalf of minors are not their abusers, judges said.

Some cases require the collaboration of multiple agencies, translators and guardian ad litums, or attorneys who represent the best interests of the child, to find birth certificates, medical records and surviving relatives in foreign countries, Travis County Judge Darlene Byrne said.

‘‘With young people that are coming across alone or with the assistance of some adults, there has to be a lot of education among the judiciary about all the tools available to them to assist that child to safety,” Judge Byrne said.

But not all counties might be ready -- or willing -- to provide that kind of support, especially as national debate has focused on making it more difficult for children to stay, legal experts said.

Some politicians contend that the same 2008 anti-trafficking law that broadened eligibility requirements for the special status also opened the door to the flood of recent refugees by requiring that Central American children be placed with relatives or other caregivers while they await deportation hearings, which could take years.

Heated debate among lawmakers over repealing the statutes might have ended this month in a stalemate, but with a push from President Barack Obama for swifter deportations, lawyers and legal experts said, officials at the local level could mistake the remedy for “backdoor amnesty.”

Other critics say some judges could be more liberal than others in defining abuse and neglect.

But judges are not being asked to go beyond the scope of their mandate, lawyers said. Many minors fleeing violence, extortion and poverty fit the child protection statues and do not become a burden on local jurisdictions as they either have relatives or sponsors caring for them or are in federal custody, said Everard Meade, director of the Trans-Border Institute at the University of San Diego.

‘‘These children are not getting dumped on their doorstep,” Mr. Meade said. “All (judges) must be able to do is what they have always done: make a finding on whether the child has been abused, neglected or abandoned.”

Associate Judge Charles Van Orden said most judges who handle child welfare cases know to put the interests of children first. He hears the bulk of such cases in Bell, Llano and Burnet counties the latter of which includes Marble Falls, where last month city officials passed a resolution against housing immigrants. That would not affect his decision on a petition, he said.

‘‘If we have one of these cases in front of us, we will do whatever it takes to seek peer support, education and information because none of us want to make a mistake that might negatively impact the lives of these children,” Judge Van Orden said.

Maria Aracely is still awaiting a response to her case. But on a muggy, overcast Friday in July, she cleared the first step, rushing into the Travis County courthouse downtown as a judge ruled she had been abandoned by her mother and could not return home. The court order also covered protection for her 1-year-old daughter, Linze.

Her family court lawyer, Lee DiFilippo, said the teen could qualify for the status, given the impoverished living conditions and high rates of gang violence in her hometown.

For other children just embarking on the process, the form of abuse might be more clear-cut. Outside the federal immigration court in San Antonio, another teenager, Jose, recounted how he made the journey to Austin in October after gang members in El Salvador killed his two best friends and broke into his home.

‘‘I had to leave,” the 17-year-old said in Spanish. “Or I would not have lived.”

United States - North America - Texas - Central America - Latin America and Caribbean - Barack Obama - San Antonio - Austin - Honduras


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