Data from immigration courts, along with interviews with the children and their advocates, show that few minors are sent home and many are able to stay for years in the U.S., if not permanently. That presents a deep challenge for President Barack Obama and lawmakers as they try to shore up an overburdened deportation system.
In fiscal year 2013, immigration judges ordered 3,525 migrant children to be deported, according to Justice Department figures. Judges allowed an additional 888 to voluntarily return home without a formal removal order.
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Those figures pale in comparison with the number of children apprehended by the border patrol. In each of the last five years, at least 23,000 and as many as 47,000 juveniles have been apprehended. Those totals include Mexicans, who often are sent home without formal deportation proceedings and so may not be among those ordered removed last year.
There are many reasons children end up staying. Some see their cases linger in backlogged courts and administrative proceedings. Some win the legal right to remain in the U.S. And some ignore orders to appear in court.
Children who enter the U.S. illegally often are trying to reunite with family members or escaping gang violence and poverty.
The U.S. has been overwhelmed finding shelters for them, and Mr. Obama has repeatedly said that they won’t be allowed to stay.
But the reality on the ground—that so few are returned to their home countries—will continue to encourage more to make the journey north, said Doris Meissner, director of the Immigration Policy Program at the nonpartisan Migration Policy Institute.
“They’re here, and they’re staying, and whatever else might happen to them is at least a year or more away,” said Ms. Meissner, a former Immigration and Naturalization Service commissioner. “Until people’s experience changes, more are going to continue to come, because they’re achieving what they need: safety and reunification with their families.”
Last fiscal year, immigration judges reached a decision in 6,437 juvenile cases, according to the court data. About two-thirds of the minors were ordered deported or allowed to leave the country voluntarily, and 361 were given legal status. In most other cases, the judge terminated the case, meaning the child wasn’t ordered out of the U.S. but wasn’t given explicit permission to stay, either.
Separate data from the Department of Homeland Security show that in fiscal 2013, about 1,600 children were actually returned to their home countries—less than half the number who were ordered removed—suggesting that some are evading deportation orders.
The head of the immigration court system told a Senate hearing this week that 46% of juveniles failed to appear at their hearings between the start of the 2014 fiscal year last Oct. 1 and the end of June. And court figures show that last year, more than 2,600 out of about 6,400 orders were entered without the juvenile present—in absentia.
Simply reaching a decision in these cases can take years, and the backlog is growing worse. As of June 30, there were 41,832 pending juvenile cases, up from about 30,000 nine months earlier. In some jurisdictions, it is common for court dates to be set two or three years out.
Most illegal border crossers are adults, children traveling with adults, or juveniles from Mexico. Their cases tend to be heard quickly, and most are immediately sent back to their home countries.
The current crisis at the border is due to a different set of illegal immigrants, unaccompanied minors from Central America. The long delays largely can be traced to a 2008 federal law that requires cases involving children traveling alone from countries other than Mexico and Canada be heard in immigration court. The wait can stretch to several years for a decision, even in a straightforward case.
The vast majority of these children are placed with family members in the U.S. while the proceedings unfold, but first they must travel through facilities run by two different government agencies, which further extends the process.
On top of that, judges often delay cases repeatedly to give the children time to find legal representation. Just 15% of some 21,000 children sheltered by the Department of Health and Human Services between August 2012 and July 2013 were matched with attorneys while in government custody, an HHS spokesman said.
Helen Cruz, 16, said gang violence in her home of Tegucigalpa, Honduras, pushed her to make the 1,900-mile trek to the Texas border with her 17-year-old sister.
More than seven months after she arrived, Ms. Cruz’s legal proceedings have barely begun. Her first court appearance is scheduled for August, and it could take another year or more for her case to be adjudicated, said Wendi Adelson, a professor at the Florida State University College of Law who is representing her pro bono.
Her August hearing will likely be a short affair to inform the judge she plans to apply for special immigrant juvenile status, a process that could take many months. That will require Ms. Cruz to obtain an order from state juvenile court stating that she has been abandoned by her father and it isn’t in her best interest to return to Honduras. She then will need to file an application with the U.S. Citizen and Immigration Service, where the number of pending special immigrant juvenile status cases ballooned to 702 in the year ending September 2013 from 47 during the same period in 2011, agency statistics show.
“Sometimes I feel like going back, but I’m in danger over there” from gang violence, Ms. Cruz said. “If I can stay here, I will get a chance to get an education and be able to help the people I love back home.”
Under U.S. rulings, threat of gang violence by itself doesn’t qualify someone for asylum. Nor does economic hardship at home qualify someone for legal status in the U.S.
At the same time, the U.S. sometimes is unable or unwilling to return children who have been ordered removed. So far, that is a small problem, one official said, but it is likely to grow as the U.S. seeks to return many more youths to their home countries.”We just want to make sure that kids don’t fall through the cracks,” a senior administration official said. “You can’t send them back without making sure there’s a system in place that makes sure they don’t wind up in an unsafe environment.”
Because of court backlogs, most of the 2013 court and deportation data represent cases of children who arrived in earlier years. One explanation for the low deportation figures is that people apprehended as juveniles turn 18 during the course of court proceedings and so become counted as adults. Deportation figures also don’t include Mexican youth who are turned around at the border each year.
Some children are able to stay because they qualify for asylum or special visas given to victims of crime or human trafficking. Advocates say that a robust court system is necessary to be sure those claims are properly considered.
The White House has proposed modifying the 2008 law to speed up deportation cases for Central American children. This week it sent Congress a $3.7 billion plan that would add more detention facilities and immigration judges, and help Central American countries repatriate children.