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First the Fence, Then the System

The border fence, Rio Grande Valley, Texas.

[clock] 42-MINUTE READ ISSUE:  Summer 2013
More and more children from Central America are entering the US illegally and alone. What happens when they're caught?

 

Tiptoeing through the scrub brush of South Texas, everything sounds like a threat: wind rustling the palm fronds, a lizard skittering through the understory, a hawk’s heavy flapping, one’s own arm against a pantleg.

At the bottom edge of the Santa Ana National Wildlife Refuge slinks that fabled river, the Rio Grande, not two car lengths across. It is both astounding and totally unsurprising that Mexico, on the opposite bank, looks just the same as Texas, just a mirror image of nothing special. The park is a restored desert wetland, home to birds and armadillos and the endangered ocelot, with the occasional crossing of both Border Patrol trucks and those they are hunting. Thanks to uproar from the park staff and local environmentalist groups that had worked to restore and preserve this nearly lost habitat, the infamous border wall—​a twelve-​foot-​high metal fence—​stops at the Santa Ana’s perimeter and starts up again on the other side. Next to the river, a sign reads: this corridor will allow animals to safely pass along and across the Rio Grande. Just east of the sign, you can see a narrow scramble path leading from the murky river up into Texas.

The gift shop at the Santa Ana Refuge sells T-​shirts and postcards of Texas wildlife. In the corner stand a few tanks showcasing what you might see out there—​snakes, mud eels, tortoises. I asked the cashier, who was at the window spying for jays, whether immigrants ever crossed through here. She raised her eyebrows, registering that I was clearly from out of town.

“Every day!” she said. “You can find stashes of water and clothes and all sorts of stuff back there,” she said, motioning to the park. “But you know, they aren’t after us. They aren’t trying to hurt us. They just want a better life. It’s mostly families and kids,” she said.

“Kids?”

“Oh, yeah. Just last week they caught twenty of them. There was one full family, but the rest of them were all kids.”

The history of the Rio Grande Valley is one of migration, of shifting borders, of walls and fences, hidings and crossings—​this used to be Mexico, after all, and before that indigenous land. Today the two most reliable imports here are people and drugs. In 2012, Border Patrol in the Valley apprehended more than 97,000 undocumented immigrants, up from 59,000 the previous year. Human smuggling and drug smuggling have become a cooperative business. The infamous Ciudad Juarez, across the border from El Paso on the western side of the state, has one of the highest murder rates in Mexico, often related to narco-​trafficking. Increasingly, the violence has spread east to the Mexican side of the Rio Grande Valley—​Reynosa, Matamoros, cities to be avoided if you can help it. And yet here and at nearly every other stopover point en route to the US, hundreds of children from all over Central America find themselves in a life-​threatening state of limbo far away from home, hunkering in safe houses or along the riverbank for a chance to slip across the border. 

Border Patrol officials estimate that about 7 percent of all apprehensions are what they term Unaccompanied Alien Children—​UACs, or “juvies,” as they’re more commonly referred to among Department of Homeland Security officials. An unaccompanied minor is someone who is under eighteen, has no lawful immigration status, and has arrived without a parent or guardian. Increasingly, these children are crossing the US-​Mexico border from starting points as far away as El Salvador, Honduras, and Guatemala. The Vera Institute of Justice finds that approximately 85 percent of unaccompanied minors nationwide are apprehended close to the border around the time of crossing, and that almost a quarter of all apprehensions happen in or near Texas’s Rio Grande Valley. In 2011, 17 percent—​or 1,115—​of those children were under the age of fourteen.

Recently, unaccompanied minors have become an unstoppable flood. In 2011, the Department of Homeland Security (DHS) referred 6,560 apprehended UACs to the Office of Refugee Resettlement (ORR), the federal office that oversees unaccompanied minors. But in what an advocate in the Rio Grande Valley likes to call “The Tsunami of 2012,” that number more than doubled to 13,625. There were not enough beds to be had, so ORR set up temporary shelters in unoccupied Air Force barracks in San Antonio. By the end of February 2013, 7,002 apprehended UACs were transferred to ORR custody—​more in the first five months of federal fiscal year 2012 than in all of federal fiscal year 2011.


Why are they coming—​and why so many? Some come to join parents who left long ago and are living undocumented in the US; sometimes parents, feeling secure enough, send for their children; sometimes children come to track down their long-​departed families. But based on what the children themselves are telling them, advocates say that the biggest cause of this exodus is a dramatic increase in violence among impoverished communities in Central America. The fabled assumption is that people long to come to the US because of the opportunities it offers: free education, a chance to work, basic liberty. For children coming alone, the truth is often much darker than that. Rather than being lured to America for its promises—​what advocates call “pull factors”—​kids are fleeing legitimate fears at home. A boy is roped into a gang against his will. A family member is kidnapped. A mother or a sister is raped. A father is murdered. A family is extorted. The police themselves are either terrified or taking a cut or both. Worse still, the violence is within the family itself. These “push factors” are the overwhelming cause of the recent influx in unaccompanied minors showing up in Texas and all over the US.

“The journey here,” says Kimi Jackson, an attorney at the Harlingen, Texas-​based legal advocacy organization ProBAR, “is extremely dangerous.” To travel alone as a child or teenager means risking rape, kidnapping, forced recruitment into gangs or sex-​trafficking rings, and even death along the way. “For a child to choose to make that journey,” says Jackson, “there’s a reason.”

A well-worn path leading from the Rio Grande into the Santa Ana National Wildlife Refuge.

Jordi is one such kid, an eighteen-​year-​old boy from the Guatemalan highlands who fled here, alone, when he was fifteen. I met Jordi through his immigration lawyer, a young, bright-​eyed attorney named Katie Chatterton, who works for Haynes and Boone, LLP, housed on the twenty-third floor of a sleek high-rise in downtown Houston. A specialist in corporate employment immigration, Chatterton attended an info session about pro bono opportunities after joining her firm and was struck by the work of Kids in Need of Defense (KIND), an organization that helps unaccompanied migrant children apply for immigration status. Chatterton is herself an emigrant from England, and she understands the labyrinthine nature of the US immigration system. “I had a pretty easy time applying for my visa,” she told me. “I had a sponsor, I knew how to fill out the forms, but it was still really complicated. It’s a harsh system for a child trying to figure it out all alone.” Jordi’s is a classic Special Immigrant Juvenile case, Chatterton says, and in many ways the classic profile of an unaccompanied minor: an uneducated boy in his midteens from Central America traveling alone, apprehended in South Texas, and detained in juvenile shelters for several months before being released to a family member (in his case, his sister).

I met Jordi on a Saturday morning in the near-​empty streets of downtown Houston, just outside of Chatterton’s high-rise. He’d arrived early, having taken an hour-​long bus ride from his home on the north side of the city. When I spotted him, he was hunched over his cell phone, texting. A Guatemalan with indigenous roots, Jordi has just graduated high school, and is dead-​set on joining the Marines once he gets his green card and, someday, becoming a scientist. He’s a typical teenager in many respects—​addicted to his phone, active on Facebook, into working out and girls. But there’s a severity to him. When he talks, he’s either smiling widely or regarding something—​the sidewalk, his phone, the basket of chips—​with extreme concentration and force, as if it were something deeply undesirable. When he talks about his past, he vacillates between a solemn, hard-​faced account and shy laughter. 

We headed to a Tex-​Mex restaurant on San Jacinto Street, where we found a booth and Jordi told me about his American pilgrimage, which began in a tiny village in the region of San Marcos. He described a childhood besieged by an abusive father, a part-​time builder who constructed everything from chairs to tables to television stands. On good days, Jordi said, his father would take him to the woodshop so he could help out—​building a set of chairs or sanding a table. More often, though, his father would skip the woodshop altogether and head for the cantina, where he stayed until dark, a primer for violent nights at home. “With all of us it was the same,” Jordi said. His father would come home, raise hell, beat his wife and children, even throw them out into the streets. “It didn’t matter what time it was or how cold it was outside or if we had anywhere to go.” If they called the police, the police did nothing (Jordi remembers his father slipping officers cash now and then). Eventually, the police stopped coming altogether.

One by one, Jordi’s older brothers headed north, reuniting in Anaheim, California, where they found work in construction—​under the table, using fake social security numbers. Once they got situated in Anaheim, the brothers began sending money back to their mother via MoneyGram, which their father often found out about and siphoned away. “It was just a little money,” Jordi said, “for food and the house and stuff like that. But he didn’t care.”

One night, when Jordi was ten years old—​“still really small”—​his father returned home drunk. “We were all sleeping, me and my mom and my five brothers and sisters. He came in and woke us all up, shouting at my mom, saying bad things about her and her family, calling her a prostitute. He began hitting my mom and calling me terrible things.” He shook his head. “The worst things you could imagine. I didn’t want him to throw us out, and I was so mad at him for all the things he’d done. I was full of nerves because of what he was doing. It made me feel like I had to do something. I don’t know where I found the strength, but I pushed him—​hard, with all the force that I had,” slamming his father against the wall and knocking him down. “I was just a kid.” He laughed as he recounted it—​still proud, eight years later, of his momentary victory. “I was really small,” he insisted. 

“After that night, I knew I had to go.” Anaheim came to mind. “But I’d only been to the second grade,” he said. “What was I going to do when I came to the US? I didn’t speak the language, didn’t know anything about school. I didn’t know anything. I could add and write a little. That was it. Where would I find work in the United States? How would I get there?”

It took another five years for Jordi to decide that nothing could be worse than life at home. He’d only attended three years of school by then, still barely knew how to read or write. He was still small (at eighteen, Jordi is only five-​four) and had never been far from his village. He called his brothers, who wired several thousand dollars to coyotes—immigrant smugglers—in Guatemala. When all was arranged, Jordi and his mother took a four-​hour bus ride to the coast, as instructed, to a safe house where about twenty other passengers were already waiting. Jordi said goodbye to his mother, then ducked inside.

“The next night, we loaded into a boat,” Jorid said. “We traveled all night. The boat wasn’t that big, and the water was really rough. I couldn’t sleep. It was dangerous there on the water, too, because we were on the border with Mexico and there was lots of drug trafficking, all hours of the night. The coyotes told us that we had to be careful because bad things had happened on these trips. 

“There was only one other kid like me. He was fourteen years old. He left because his parents weren’t in his country anymore. They’d been in the US for a long time and he wanted to find them.” I asked Jordi if anyone tried to help him or take care of him, since he was only a kid. “Nobody did anything like that. Nobody cared. You know, Mexico is different than here. Here, if people see you not doing well, they’ll ask how you are. But not in Mexico. They don’t care about nobody. In Guatemala it’s the same.” 

Around dawn, they arrived in Mexico: one step closer to Anaheim. “When we got off the boat, we all separated. One group went here, one group went there. Me and about ten other people walked about an hour to a house. I was so tired and sore.” From the safe house he took a bus, then another, aiming for Reynosa, the Mexican sister city of McAllen, Texas, where he and the others spent a few nights in a motel awaiting instructions.

A guard dog rests while laundry dries in a backyard along the border, just south of Harlingen, Texas.

From Reynosa, you can practically spit across the Rio Grande to the United States. The crossing itself seemed shockingly simple: The group followed the coyotes down the banks of the river, loaded into a small boat, and, within minutes, stepped off into Texas. They then worked their way through the tall brush as quietly as possible, the dried tree limbs, palm fronds, and tall grasses shushing against their bodies. After about an hour, they arrived at a trailer home. The coyotes guided them inside and locked it. “No one could leave for anything,” said Jordi.


They slept on the floor, close but not touching. The next day, they did nothing but wait. “It was boring. I talked to the other people, but just a little bit. The people who lived there bought us food—​fried chicken and biscuits and soda.” The next night, they were shepherded by pickup to another patch of dense chapparal and sage brush, where they continued by foot again. On this leg, the coyotes grew tense, hissing at their charges and smacking them if they talked. “I kept quiet,” Jordi said. “We were like ghosts.” They shuffled along a terrain that shifted from dense brush to tall forest and back to brush again. At one point, the coyotes handed everyone pills to help them stay awake, to keep moving. Jordi, exhausted, watched as others took theirs. “They got really high,” he remembered. “I was so tired. I thought about taking it. But you never know what will happen. You could get a heart attack, you could die there. I thought about my brother and my dad, and how drugs affected them. So I didn’t take it.”

At sunrise, they stopped to rest, finding cover under a thin canopy of ash and elm trees until dusk, when they started walking again. The next night, the same. “Sometimes I slept, sometimes I didn’t,” Jordi said. After two days of walking, they emerged at dusk somewhere in the northern part of the Valley, just south of Corpus Christi, where yet another pickup truck was waiting for them. They loaded into the bed of the pickup, one on top of the other. The coyotes covered them with a thick blanket, then hopped into the cab. The truck charged ahead as night fell, the passengers packed together.

Though it was November, and mild, the air was rank and stifling under the blanket. After a while, Jordi felt the truck begin to accelerate. Then he felt it swerve. He suspected that Border Patrol had spotted them, and was giving chase. The truck veered and gained speed, then collided—​with another car, a pole, a wall, Jordi wasn’t sure—​and somersaulted until it landed upside down, atop its heap of passengers.

“I was the first one to wake up,” Jordi remembered. “We were stuck there under the truck, and I had to climb over other people and get out through a small space between the truck and the road. I felt like I was going to die—​I couldn’t breathe, I’d been hit so bad. I had to hit my own stomach to start breathing again.” Others began to stir. “People were covered in blood. Some of them started screaming. Some of them weren’t moving at all. I don’t know what ended up happening, if they ever moved again after that.” 


If they did die there on the road, bodies unidentified and unclaimed, it is likely that they ended up at the Sacred Heart Burial Park, just a few miles north of the Border Patrol checkpoint on Highway 281, and eighty or so miles from the sand-​blown road where Jordi’s truck overturned. The checkpoint serves as a second front for Border Patrol, snaring truckloads of immigrants and narcotics, effectively driving coyotes and their passengers into the nearby brush. (In late March, the checkpoint sign boasted that it had caught 78,087 pounds of drugs and 9,442 aliens to date.) 

John Doe. Unknown Female. Child. Unknown Male. Skeletal Remains. Unknown: So read the cemetery’s small, tin signs that commemorate the unidentified bodies recovered by the Department of Homeland Security and local ranchers. Some signs are left nameless, using only serial numbers. In May, a local funeral home exhumed more than fifty bodies from Sacred Heart for DNA testing, in response to inquiries directed at consulates and DHS by families in Central America searching for relatives who’d gone missing en route to the US. If there are no detention records, Sacred Heart is the next reasonable place to check.

In the ambulance, the emergency responders asked Jordi his age.

“Fifteen,” he told them. Then he passed out.

He awoke in the hospital, his leg broken, in a cast, his hands strapped to the bed. “How old are you?” someone asked him again.

“Nineteen,” he said. He’d remembered what his cousin had told him, that kids caught in the US were sent back to their country of origin, that adults were allowed to stay. South of the border, rumors like this run rampant, contradicting each other.

If you’re caught, say you’re an adult so they don’t send you back.

Say you’re a kid so they don’t send you back. If you say you’re a kid, they won’t take you to prison.

Practice your Mexican accent. They’ll drop you off in Mexico. It’ll be easier to get back in.

Jordi looked young, but he insisted he was nineteen. As a result, he was transferred to an adult detention facility in Corpus Christi. “I couldn’t walk for two months after the accident. I got a cast and a wheelchair for two weeks. I was only in the hospital for like five hours, then I went to the prison.” At Corpus Christi, he was given an orange uniform and locked in solitary confinement. “I really don’t know why,” Jordi said, laughing. “Maybe because I didn’t know anyone—​but I really don’t know.” After ten days alone, he was moved into a crowded cell, then sent to a nurse to inspect the progress of his leg. She seemed suspicious of his age, studied his face. He insisted he was nineteen. But with each visit, she asked him again, until finally, after about three weeks, Jordi confessed he was actually fifteen.


In September 2010, Jordi was transferred to where most unaccompanied minors wind up, a facility under the auspices of the Office of Refugee Resettlement. Previously overseen by Immigration and Naturalization Service (INS), ORR took over the care and custody of unaccompanied minors in 2003. Before that, a landmark 1997 case known as the Flores settlement ensured that UACs would no longer be detained with adults, and that children would be placed in the most humane and least restrictive detention setting possible. Even still, children post-​Flores were detained by INS, and later by DHS, which meant that the same agency supposedly caring for the unaccompanied children was also prosecuting their cases. To reverse this conflict of interest, care of UACs was transferred from DHS to ORR. Under ORR’s mandate, children under twelve, as well as highly vulnerable cases, such as pregnant girls or sex-​trafficking victims, are placed in foster care. The rest are housed in what are essentially hybrid youth shelters/detention centers, where they are cared for as children but not free to come and go. The ultimate goal is to reunite unaccompanied minors with a sponsor in the US—​a brother, a family friend, an aunt, even a parent who has been living here undocumented—​so that they can get out of the shelter and into the care of a trustworthy adult. (The Vera Institute reports that more than 80 percent of unaccompanied minors in these shelters are reunified with family members or close friends before their cases go to court.) Once reunited, they must appear in court, where they can apply for legal relief that will allow them to stay. Otherwise, they are sent back home.

Because of the great rush of 2012, there are only so many beds to be had among ORR facilities. Children are routinely sent states away from where they were initially apprehended. In Jordi’s case, a bed had opened up in Chicago, at the International Children’s Center Youth Shelter, a contracted facility. The children at ICC arrive from all over the world—​the Congo, China, India (the staff, in fact, speaks more than twenty languages collectively). Jordi described ICC as quiet, but far better than the detention center. “In Chicago, it was pretty good. I trusted all the staff, they treated me well. They were caring and kind to all the kids. Every day we’d go to class. They’d take us out—​to parks, to the gym. To me, all the adults were good. I can’t say they were bad people—​they were doing the best they can. I still try to stay in touch with them.” In the fifty-​four-​bed shelter, Jordi shared a room with three other boys, sleeping in bunk beds, each boy with only a few personal effects stored in shelves and lockers.

A car abandoned just minutes before, during a pursuit by Border Patrol near Falfurrias, Texas. The driver and four passengers fled into the brush.

“We had a talent show every month,” he explained. “It wasn’t a competition or anything, but just to have fun. I sang two different songs.” One was a Christian song called “Jesus es Verbo” (Jesus Is a Verb), which, he explained, is about how you have to act like Jesus, not just talk the talk. The other song was a love song, “De Rodillas te Pido” (I’m Begging On My Knees), about a boy begging a girl to come back to him. Jordi talked about the talent show and the songs he chose. “I played the piano while I sang. We all cheered for each other—​there was lots of energy. I remember all of it because it was so great.” After a few months at the ICC shelter, Jordi was transferred to another Chicago facility, again due to a shortage of beds.

From both shelters, Jordi called home as much as they’d let him—​only twenty minutes a month, the standard allowance for ORR shelters nationwide. He told his mother he was fine, he was safe. He didn’t tell her about the accident, or about being sent to immigration jail. “I came here to help my mother, not to give her more worries. So I didn’t tell her about the bad stuff.” Besides, Jordi added, “it was a good place. Only that I still wasn’t free.” No matter how nice the facility, or how kind the staff, Jordi wanted out.

Members of the Brooks County Sheriff’s Department meet before searching an abandoned safe house on the outskirts of Falfurrias, Texas.

The shelter staff worked to reunify him with a family member in the US. His brothers in California couldn’t sponsor him because they were too busy and unsure about their status. A sister lived in Houston and offered to take him in, though she, too, was hesitant because of her lack of papers. The shelter staff assured her that she would not be deported if she took custody of Jordi. Within a few months, Jordi moved to Houston to live with her.

He enrolled right away at Aldine High School, and began leading what he says felt like a normal American teenage life, though he was still very much in legal limbo. There was only a limited amount of time he’d be allowed to stay before his case would be brought to Houston’s immigration court, where he would be deported unless he could establish legal grounds for relief. Through a referral from the Chicago shelter, he was introduced to Katie Chatterton, who took on his immigration case. Jordi began meeting with Chatterton regularly, taking the hour-​long bus ride south to her office, sometimes once a week, to prepare his case. His options for staying depended on being recognized under one of two categories: Special Immigrant Juvenile Status or asylum.

Flotsam left behind in a safe house.

To qualify for Special Immigrant Juvenile Status, a child must prove that he has been abused, abandoned, or neglected by a parent or guardian. To qualify for asylum, he must prove that he has a well-​founded fear of persecution in his home country on account of his race, religion, political opinion, nationality, or membership in a particular social group. Social group is the most nebulous of the five grounds for asylum—​one must prove both membership in the social group and show that the group is visible and recognizable. It will often provide protection to homosexuals, for example, in countries with entrenched homophobic laws or practices, and increasingly to victims of gender-​based violence such as female genital cutting or attempted “honor killings.”

Most often, asylum-​eligible unaccompanied children fall into the social-​group category, which is the hardest case to prove. Just saying you’re a victim of gang violence, for example, does not qualify you for relief. What is the particular social group that you are a part of? Are you specifically being targeted, or is it just generalized community violence you are fleeing? In addition to the social-​group challenge is the challenge of nexus: An asylum applicant must show a direct link between his particular social group and his fear of persecution. 

Chatterton’s strategy was to apply for both Special Immigrant Juvenile Status and asylum, “hoping one would stick.”


Though there are shelters all over the country—​Chicago, Seattle, New York, Los Angeles—​Texas’s Rio Grande Valley (where Jordi would have been sent had there been a bed available) is host to the largest single portion of detained immigrant children in the country—21 percent as of 2010, and rapidly growing since then. The Rio Grande Valley has more than 1,100 beds designated for these kids at any one time, increasing from 700 beds after ORR opened five new shelters in June. The shelters are sprinkled throughout the Valley, in locations like Harlingen (home of the region’s immigration court), Combes, San Benito, Los Fresnos, and Brownsville. Despite the fact that thousands of them move through this area each year, these children are, for the most part, invisible to the larger population that hosts them.

La Esperanza Home, an ORR facility in Brownsville, exemplifies how strangely present and absent this subpopulation of kids can seem. Twenty-​four hours a day, seven days a week, La Esperanza is packed with children ages twelve and older, nearly all from Mexico and Central America. A chain-​link fence surrounds the shelter, parking lot, and adjacent small soccer field that, most of the time, is brown-​green and unused. The children sleep in camp-​style bunk beds, eat three square meals a day, attend English classes, meet with legal experts, and make their weekly phone calls home. Advocates describe it as not depressing, necessarily, but eerily quiet. Children are let outside only a couple times a week—​to play, to go on field trips, or to board the vans headed for the immigration courthouse in Harlingen.

The courthouse itself is a sleepy, one-​story brick block of a building that sits near an overpass, just down the block from a Motel 6. An American flag flaps lazily overhead. All juvies detained in the Rio Grande Valley are ordered to appear here, where four immigration judges with full daily dockets—​four days a week, at least one of these dockets devoted to children—​preside over packed courtrooms and hear the details of each respondent’s case.

Though architecturally dull, the courthouse can be an intimidating place to the children with business here. “The kids don’t know what to expect. We tell them, but still—​they’ve never seen a building like this,” says José Chapa, a paralegal working for ProBAR, the project of the American Bar Association that provides legal support for children detained in the Rio Grande Valley. Because the average stay in an ORR shelter is sixty-​one days, most children receive a Notice to Appear in court for immigration removal proceedings while they are still in detention, before they can be reunited with family. Unlike domestic juvenile courts, there is no public attorney assigned to children, nor is there a child advocate to help the child navigate the legal proceedings. Most children appear pro se—​in legal parlance, for oneself.

Without ProBAR, finding representation in the Valley would be nearly impossible. The area is vast and poor; there are no law schools and therefore no students who can pitch in free legal help; most attorneys here aren’t equipped or willing to offer their services pro bono. Thus, the Valley has the greatest concentration of unaccompanied minors in the country but the fewest legal resources to support them. Underscoring this dilemma is the fact that, among the five new ORR shelters that have come online this summer, ProBAR provides legal services for only one. 

Legal representation is critical for unaccompanied children because, due to their vulnerability, limited life experience, and isolation, they struggle to fully understand their legal circumstances. ProBAR provides Know Your Rights trainings that prepare children, as best they can, for their legal proceedings. For the older children, the Know Your Rights trainings—​or charlas, as they are called (the Spanish word for “chat”)—​use what paralegals call “child-​friendly terms” to review what it means to be detained, the process of reunification, what a Notice to Appear means, when they will have to appear in court, and what they will have to do when they get there. The idea is to demystify the legal process and court experience, and to encourage children to become active participants in their own legal proceedings.

For children under twelve, the Know Your Rights trainings look a little different. ProBAR’s stance is that even the youngest children have the capacity to understand something of what is happening to them, and that it is their right to be given the best information—​again in child-​friendly terms—​to help them navigate their time in foster-​care detention. In these cases, the children take field trips to the Harlingen courthouse after the day’s session has ended, and role play the various courtroom jobs: attorney, client, prosecutor, judge. They sit in the same benches where they will sit on their day in court; they practice standing up and speaking their names in front of the imaginary judge. ProBAR paralegals have children draw their lives at home, which then form the basis of questioning in their initial legal screenings. Attorneys and paralegals can ask children to explain what is happening in a picture. As Violeta Discua, a veteran ProBAR paralegal, describes it, “I might say, ‘Who is that person?’ and a child might say, ‘Oh, that’s my grandma!’ And I would say, ‘Is she a good person?’ ‘Oh, yes, she’s a really beautiful person, she makes me tortillas!’ ‘And who is that person?’ ‘Oh, that’s a bad person, he hits my grandma.’ From that, we can begin to put together a child’s case.”

All children are given an initial screening to determine whether they might have a viable immigration case. But, as ProBAR’s managing attorney Kimi Jackson says, the screening is, by its nature, not exhaustive, since there are so many children to process. The only cases ProBAR is able to represent are emergency cases—​extremely vulnerable cases involving things like sex trafficking, for example, or children who are about to turn eighteen and need to apply for relief fast so as not to age out of the juvenile system. The only other children they represent are those who are opting for voluntary removal—​to go home on their own accord.


 

On an early Tuesday morning in March, the lobby of the immigration courthouse is packed. A handful of adults are seated along the edge of the room. About three dozen children crowd the rows of fold-​out chairs. The kids are arranged in groups according to shelter, wearing standard-​issue dress—​one group in starched, light-​blue shirts and dark-​blue jeans, another in primary-​colored cotton henleys. The kids whisper among themselves, fidget with their packets of papers. A boy about thirteen years old with spiked hair nervously tucks his red collared shirt into his jeans.

José Chapa enters the room, legal pad in hand, cowboy boots clicking against the floor. He introduces himself to the children, some of whom he has met before. Chapa, a Valley native in his late twenties, wears glasses and is slightly balding, and has a gentle and assuring demeanor as he leans over the boys and girls, checking in with each one about their cases, marking up his spreadsheet of names. “Buenos dias, jovenes,” he says to the room. “When I call your name, come stand over here.” One by one, Chapa calls their names, and they line up in somber single file, then follow him into court. The four youngest children—​ages seven, eight, nine, and twelve—​sit in the back, three boys and one girl, their feet dangling off the edge of the bench. All the seats are filled. When Judge Howard Achtsam walks in with the usual pomp and circumstance, all the children stand.

This morning, three children are opting for Voluntary Departure: two brothers from Guatemala, who speak Quiche, and one boy from Honduras. They want to go home. ProBAR has explained to them the rights and consequences of this—​namely, that they will be sent home within 120 days and that they will no longer be eligible to apply for any form of relief. But they are determined. Their case is a quick one. “You have until May 29 to leave the US,” says Achtsam—​just over a month away.The fourth child, who has also requested to go home, has trickier circumstances. “My client has several different entries,” says the ProBAR attorney. She had pulled him aside earlier to explain again: You can only opt for Voluntary Departure once in your lifetime; after that, your only option to leave is through removal, more commonly known as deportation. Once deported, you are barred from applying to enter the US for as long as twenty years. This is this boy’s third time entering the US, his third time in court. His chances are up. He will be deported within the month.

A housing unit of the Valley Baptist Mission Education Center (Harlingen), where unaccompanied minors await their fate.

Though there has been a decrease in Voluntary Departure nationwide and in Texas, ProBAR attorneys say they are seeing an increasing number of children being “forced” to choose Voluntary Departure rather than being allowed enough time to find proper counsel. “We see the court denying reset requests more often,” says Kimi Jackson, regardless of how soon a child is due to be reunited with his or her family. In most cases, she adds, kids are waiting to be reunited with families several states away; the families have trouble finding attorneys who are willing to file on behalf of clients they haven’t met. Fewer are willing to represent clients long-distance.

Jackson and other ProBAR attorneys have argued in court that removal proceedings should be postponed until after families are reunited. The Valley is so impacted with undocumented children, Jackson says, and is so strapped in terms of legal resources, that kids have a far better shot at finding affordable or pro bono representation once they’ve left. In a motion to extend a detained Salvadoran child’s case until he was reunited, a ProBAR attorney argues, “It is not uncommon for children detained in South Texas to reveal facts demonstrating eligibility for relief only after they have been released from detention.” Kids, after all, are much more likely to reveal traumatic experiences after they have landed in the care of someone they trust.

Still, if a child says he wants to go home, an attorney is obliged to help him do so, even if the child’s stated interest is at odds with his best interest.

This is a profoundly difficult position for ProBAR attorneys, especially in circumstances of what’s called “detention fatigue”—​the breaking point for children in detention facilities. Detention fatigue can lead to a child opting for Voluntary Departure even if it’s not actually safe for him to go home. Children do not possess the foresight to weigh an immediate misery against a probable danger, especially one that awaits them hundreds of miles away. A boy might know that he could be killed if he returns to Honduras, but he’s so tired of being locked up—​no matter how friendly the facility—​that he just wants to get out.

This is where the Young Center comes in. In domestic child court, children have both attorneys (provided to them by the state) and child advocates, often social workers, who represent the child’s best interests. The underlying principal is that children, being children, cannot always recognize their own best interests, and thus need an advocate to ensure that they are being met. The Young Center employs this same model for unaccompanied immigrant minors.

“Many of these kids are under immense pressure,” says Maria Woltjen, Founding Director of the Young Center. “They had a plan: They were supposed to be somewhere, meet someone, were supposed to help their family, money is owed. And that plan got interrupted. It’s the unknowing that is very hard. They are separated from their families, and they just don’t know when they are going to get out. They want to get out at all costs.”

It is this desperation to get out that makes the child advocate so important, since the best interests of children and their attorneys aren’t always aligned. Woltjen gives the example of children trafficked for labor from China through a group known as the Snakeheads. The Snakeheads often hire an attorney to get the child out, so that he can be free to work off his debt to the Snakeheads. In this case, the attorney is beholden to the traffickers, not the child, who thus needs an independent advocate all the more. “Immigration proceedings are one of the few legal arenas in the US where the child is the primary party—​acting alone,” Woltjen says. “Our immigration system still treats children exactly like adults.”

It’s hard enough to find volunteer attorneys for children, let alone child advocates. To that end, the Young Center—​along with the Women’s Refugee Commission, the Vera Institute of Justice, and such affiliates as ProBAR—​are calling for a shift in immigration proceedings that would address the particular vulnerabilities and rights of children. Their proposals include juvenile-​only dockets with judges who, like in domestic court, hear the cases of children exclusively. These dockets would all be held on a certain day, when both pro bono attorneys and child advocates could staff the court, making sure that no child appears pro se. What’s more, children wouldn’t have to tell and retell their stories when applying for relief—​an experience that can be re-​traumatizing when it involves details of incest, rape, abuse, or torture. Rather, the child could provide a single recorded testimony, with substantiating evidence from the home country, that could be admitted to the court.

“This same movement happened in domestic juvenile court once upon a time,” says Woltjen, adding that parties on all sides of the equation have expressed interest in remodeling the court system to become more child-​friendly. Though the impact and scope of the looming national immigration reform bill remains unclear, Woltjen and others are hoping that reform, whatever its broader political consequences, will trigger some improvement in how the rights and expectations of unaccompanied minors are met in immigration courts.

In the Harlingen courthouse, Judge Achtsam addresses about a dozen first-​timers at once, explaining that they will be given temporary reprieve, their cases reset for a later date. “You were not given permission to enter legally in the United States,” he tells them. “Therefore your Notice to Appear says you can be removed—​that means the same as deportation—​because you are not citizens or nationals.” The boys and girls, staring straight ahead, are explained their rights, with Spanish translation. They stand when their names are called. For kids, they are remarkably quiet, barely a sneeze or a rustle. They are given paper-work with a Notice to Appear in late May, along with a list of attorneys. “You have the privilege of being represented by an attorney, but at no cost to the US. If you cannot afford to pay for an attorney, there are a number of legal-​aid organizations in this area that can represent you at no cost. You have to find an attorney as quickly as possible,” they are told. The list, too, is effectively pro forma: No one but ProBAR will take on these children’s cases, and even then only in an emergency scenario.

“Any questions?” Achtsam asks the group.

No one raises a hand.

“Okay, thank you,” he says, stands, and raps his gavel. The juvies file out. 


 

“Was it scary?” I ask a group of boys in Spanish.

They shrug. “Yes,” one of them says. “A little.”

“It wasn’t so bad,” another interjects. “I thought it was going to be worse. We knew what it would be like from other kids. It wasn’t so bad.”

After most of the children file out, a group of boys waits for the van that will take them back to La Esperanza. One of them, whom I’ll call Miguel, sits alone, shoulders slumped, with his back to the other boys. He is seventeen and from Honduras, pale and pimply-​faced with dark curly hair. I ask him if he wants to go back. “It depends,” he says. “It depends on the news from my family.” He describes “family problems,” which in his case mean an extended family that has been the target of repeated violence. They own some land, he says, where they grow fruit and have a decent-​sized home. Because of his family’s relative wealth in the community—​by the standards of poverty, of course—​a local gang kidnapped his aunt to extort money from them.

“The police are corrupt,” Miguel says. “When my father told them they had my aunt, the police just asked for a bribe.” In the end, his family failed to come up with enough money to do any good. “They killed her. They killed her and no one did anything.”

His cousins were killed, his uncle, his grandmother. One day, he and two friends were sitting around talking about it. “You just want to live a peaceful life,” he tells me, “but you can’t.” So he and his friends came up with a plan to head north. “Just like that,” he says, “we decided.”

He spent three days near and around the Rio Grande without food or water, waiting with his group for the chance to slip across. They were spotted once, and jumped back into the river. Once they did make it across, unseen, they spent three more days hiding out in a trailer, then two more nights walking through the desert to where they met a truck. During a chase by Border Patrol, the truck, like Jordi’s, crashed—​into a dune, no one badly hurt—​and they all ran in different directions. He was caught within a couple of hours and, due to his age, brought to the detention center outside of Harlingen.

“I was really upset when I first came,” he says. He was furious for having gotten caught, and terrified about what was happening to his family at home. “I’d get mad at the other kids when they’d talk about stuff, like death and things. I’d shut myself in the bathroom. But after talking more”—​with shelter staff, with attorneys, with other children—​“I felt better.”

Like all kids locked up in the Valley, Miguel only gets two ten-​minute phone calls a week. “Last week, my father was so sad he couldn’t even talk to me.” He doesn’t know what’s really going on back home, and suspects his parents aren’t telling him the truth. “When I’m with my uncle, things will be easier,” he says, “because I can find out what’s really going on. Ten minutes—​it goes fast. Hardly any time at all.”

Given the nature of his case, it’s likely that Miguel will apply for asylum. But to do this he needs an attorney, and in order to find an attorney, he needs to get out of the Valley.

Chapa exits the courtroom and gathers a group of children in the waiting room to explain what has just happened. “Okay,” he says in the honeyed voice of a grade-​school teacher. They will have another court date, which is listed on the paper. The paper is very important and they need to keep it and bring it with them their next time in court. A boy in jeans and a gray sweatshirt, no more than six or seven, holds his blue packet in one hand and ziplocked snack in another. He looks up at Chapa, nodding. “Call your family and tell them about your court date,” says Chapa. The boy clutches his paper. If he hasn’t found a family come May, he could easily end up back in this courthouse in front of the judge without an attorney to represent him. He continues to nod until Chapa stops talking. He understands what Chapa is telling him and, of course, he doesn’t. 


 

Children often don’t know the whole picture of what is happening to them, or why. ProBAR’s Kimi Jackson provides one example of a boy who fled to the US because people in his home country (which she did not want to disclose) were trying to kill him. He knew that they were trying to kill him, but he didn’t know who they were or why they were after him. Thus, his asylum case had no shot. By chance, his sister got in touch with ProBAR and explained that she had been forced into sex trafficking by a local gang, but that she had escaped, and in retaliation for her escape the traffickers were trying to kill her brother. At that point, her brother had a case: He was being targeted because of his particular social group—​in this case, his family—​and could therefore qualify for asylum. If his sister had not called, the boy would likely have been sent home, where he would have been an easy target.

With Katie Chatterton’s help, Jordi was able to clearly articulate his story and his fears of returning to Guatemala. He told Chatterton and the judge about his father, his mother, his daily life back home. He told his story again and again. (He estimated that in the two and a half years and the three cities he’d lived in since arriving in Texas, he went to court more than twenty times.) In April 2012, he was granted both asylum and Special Immigrant Juvenile Status.

According to KIND staff attorney Dalia Castillo-​Granados, who assisted Chatterton in Jordi’s case, not many children have qualified for asylum as a result of domestic violence. “There are certain cases when it comes to asylum that are more clear cut,” she says. “The asylum law has evolved enough to protect these victims, but in children’s cases, it’s still evolving. Every case is still really uncertain.” Every win like Jordi’s, she emphasizes, is a big deal. “We haven’t really seen a precedent case that really lays the groundwork for children’s cases. We have a long way to go.”

Since the accident on the sandy roads outside Corpus Christi, Jordi has had trouble sleeping. At times, he talks about his life in fatalistic, disembodied terms. Sure, it’s been hard, he says—​he’s lived through a lot in his relatively few years. But only God knows why some people have it hard and others don’t.

“Remember,” he told me just a few weeks before he graduated high school, “that my destino”—​which in Spanish means both destination and destiny—​“was to go to Anaheim to be with my brothers.” There he would have worked and wouldn’t have gone to school. “So it could be that it turned out better—​even though it was really bad. You never know. Sometimes God has other plans for you.” 

Meanwhile, the kids keep coming. ORR keeps building beds. The courthouse processes the papers, calls the children’s names. ProBAR conducts intake after intake after intake. The children flood the Harlingen courthouse Monday through Thursday of every week. They cross their fingers they won’t be forced home before a family member or friend somewhere in the US can take them in: a real home, a safe place. The Border Patrol trucks scan the horizon, shine lights at the river, chase down suspicious-​looking trucks. In the Santa Ana behind the border wall, children lurk in the brush waiting for their chance to cross. 

 

Corrections

(July 10, 2013)

For this article, Lauren Markham was provided media assistance and statistical information by the Office of Refugee Resettlement (ORR), which is within the US Department of Health and Human Services, and by US Customs and Border Protection, which is within the Department of Homeland Security (DHS). After the publication of our print magazine, ORR contacted the Virginia Quarterly Review with corrections to the story, which have been made to the digital magazine and online versions: (1) ORR set up temporary shelters in “unoccupied Air Force barracks in San Antonio,” not in “abandoned Air Force barracks along the border.” (2) More unaccompanied minors were transferred to ORR custody in the “first five months of federal fiscal year 2012 than in all of federal fiscal year 2011,” not in the “first two months of 2013 than in all the months of 2011.” (3) In 2003, ORR took over the care and custody of unaccompanied minors from Immigration and Naturalization Service, not from DHS. (4) ProBAR has been subcontracted to provide legal services by VERA, which has an ORR contract; ProBAR does not have a direct ORR contract. Lastly, in response to the reporter’s statement that “Children are let outside only a couple times a week,” ORR states that unaccompanied minors “get daily recreational activities; outside activities are subject to the weather, just like at schools across the nation.” We appreciate ORR’s responses.

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