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Wednesday, April 3, 2024 | Back issues
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Judge takes up issue of asylum rights of ‘Remain in Mexico’ children

Immigrants' rights attorneys argued children who went through the asylum process with their families in Mexico should be given the same rights as other children when they arrive in the U.S. unaccompanied afterward.

LOS ANGELES (CN) — Immigrants' rights lawyers on Tuesday sought to persuade a federal judge that the Biden administration can't curtail the protections for unaccompanied children arriving in the U.S. after they have been already been processed with their families under the "Remain in Mexico" program.

In a one-day bench trial before U.S. District Judge Fernando Olguín in Los Angeles, several immigration lawyers testified how under Homeland Security's policy those children are denied access to "nonadversarial adjudication of their asylum claims" and other provisions under the Trafficking Victims Protections Reauthorization Act.

Those protections are provided to any other unaccompanied children apprehended at the border, and according to the immigration lawyers, there's no legal reason why children who were first processed in Mexico before they were separated from their families should't be afforded the same safeguards as they try to navigate the U.S. asylum process.

In some cases, the parent or parents accompanying the children may have died while they were in Mexico, Karen Tumlin, one of the attorneys arguing the case said. In other cases, the parents may have made the heart-wrenching decision to send their children by themselves for their well-being.

"TVPRA doesn't allow this kind of à la carte treatment of unaccompanied children," Tumlin said of the federal law protecting unaccompanied children. "It's not a menu where you can pick some items and not others."

The Trump administration in 2019 initiated the Migrant Protection Protocols, commonly known as "Remain in Mexico," which forces prospective asylum seekers from Central America and other countries arriving at the southern border to stay in Mexico while their case winds through the immigration process.

Although the Biden administration ended the Remain in Mexico program this year, its policy has been to rely on the immigration proceedings that were conducted or finalized while the prospective immigrants were stuck in Mexico, including removal actions, to deal with the unaccompanied children when they subsequently arrived in the U.S.

According the plaintiffs, this meant that those children can face deportation within weeks after their arrival rather than being giving years to apply for asylum and go through the process under the TVPRA protections. Consequently, the pro bono organizations claim, they have to devote huge amounts of their limited resources to those emergency situations.

More than 6,000 children aged four and younger have been processed through Remain in Mexico, and they won't be able to try to seek asylum again until they're 18, the plaintiffs said.

Diana Tafur, supervising attorney of the Children’s Program at the Refugee and Immigrant Center for Education and Legal Services, recounted in sometimes emotional testimony the challenges attorneys face helping children because they don't have time to build the necessary trust with the children to get their story or to get all the case information from the government needed for court filings.

In one case, Tafur said she was trying to help a young boy from Guatemala who she believed was from Mayan descent because of his name and accent who had arrived alone in the U.S. after going through the Remain in Mexico proceedings with his father earlier.

"We tried really hard to connect with him and to built trust, but he wasn't talking to us," Tafur said. "I don't know if we screwed up."

The Trafficking Victims Protections Reauthorization Act provisions require that Homeland Security provides unaccompanied children not only non-adversarial review of their asylum applications, but also exempt the children from the one-year filing deadline for applications and places them in child-sensitive removal proceedings with access to counsel. It also gives the child the option to elect voluntary departure which, unlike deportation, gives them the option to re-enter the U.S. within 10 years.

Attorneys representing the U.S. government argued the number of unaccompanied children arriving in the U.S. who have been processed earlier with their families in Mexico is quite small and that only about 38 of them have been deported. They also disputed that children aren't allowed to challenge their removal orders.

"Plaintiffs want to short-circuit the process by getting a ruling that all previous removal orders aren't valid," Assistant U.S. Attorney Jaxon Axe told the judge. "They have the right to seek to reopen their cases."

Olguín wasn't impresses by the government's argument that invalidating previous removal orders would incentivize parents to send their underage children to the U.S. by themselves because it contradicted the government's argument that there very few children to whom the issue before him applied.

The immigrants' rights lawyers seek an order vacating the Homeland Security policy under the Administrative Procedure Act because they say its arbitrary and capricious. They also argue the policy violates the due process rights of the children.

The judge took the matter under submission without issuing a ruling. Olguín's comments during the hearing indicated some sympathy with the plaintiffs' case in so far as they try to safeguard the rights of children who otherwise might fall through the cracks.

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Categories / Civil Rights, Courts, Government, Immigration, Trials

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