A ‘Generous’ Pathway to Citizenship, Foster Care

The trophies displayed on the fireplace mantle of a stately Gothic mansion represent just some of the accomplishments of the kids at Casa Libre, an emergency and long-term shelter for undocumented homeless youth in Los Angeles’ MacArthur Park neighborhood.

But Federico Bustamante, the shelter’s program director, doesn’t measure success in terms of college scholarships or wrestling championships, although his graduates have earned both.

“They’re all success stories,” Bustamante said. “I’ve got nothing but success stories. If you can make it from Central America to the United States in one piece, then you’re a success story in my book.”

Some of the trophies won by youth at Casa Libre, a shelter for homeless youth who come to the U.S. from Central America, often as unaccompanied minors.

For the past fifteen years, Casa Libre has served as a refuge for unaccompanied minors who arrive in Southern California from the violence-prone Northern Triangle countries of Honduras, Guatemala and El Salvador.

Many of those children have been granted lawful permanent residence in the United States through a form of relief known as Special Immigrant Juvenile Status (SIJS), which provides green cards to unauthorized refugee children who cannot be returned to one or both parents due to abuse, neglect or abandonment. The program has been widely used by child welfare agencies and advocates as a way to support the needs of unaccompanied minors living in the U.S.

Enacted in 1990, SIJS was originally created by Congress to protect vulnerable, non-citizen homeless and foster children from deportation and exploitation. But in 2008, President Bush signed the Trafficking Victims Protection Reauthorization Act, which expanded the definition of SIJS to include minors under the age of 21 who have been declared a dependent of a juvenile court, who cannot be reunified with one or both parents due to abuse, neglect or a similar basis, and for whom a return to their country of origin is determined to be against their best interests.

“It’s the most generous form of relief I know of in the world,” said Lenni Benson, a professor of law at the New York Law School and the director of the Safe Passage Project, a non-profit that provides pro-bono legal representation to unaccompanied immigrant children.

But in recent years, the use of SIJS has expanded from a relief intended for children in foster care into a way to deal with a flood of unaccompanied minors arriving mostly from the Northern Triangle countries.

As a result, the ability to secure visas for children from those countries has grown more difficult. A surge in SIJS applications since 2014 created a massive backlog, meaning that the program may not be a viable solution for the undocumented youth who currently live in Casa Libre’s care.

“The problem is when we’re using SIJS as a child protection law analogous to asylum, where there is no quota, the demand creates an unintended consequence of delay,” Benson said.

Like most visas, SIJS visas are subject to quotas that limit the number available in a specific category. Since its creation in 1990, SIJS visas have been categorized under what’s called the fourth preference employment-based (E4) quota. This means that other “special immigrants” – including NATO retirees and military translators – count toward the 9,940 visas available to special immigrant juveniles in a fiscal year.

For decades, the quota was a non-issue. As recently as 2013, only 3,994 special immigrant visa petitions were submitted to U.S. Citizenship and Immigration Services (USCIS).

But last year, USCIS received 19,475 petitions, more than double the annual quota. At the end of 2016, there were more SIJS applications awaiting decisions (8,533) than there were total applications submitted (6,840) between 2010-2012.

“We can’t think of SIJS as a simple solution anymore,” said Benson. “We have to be thinking long-term. And we have to be thinking, is there any other way to help this young person gain legal status?”

Federico Bustamante, the program director at Casa Libre in Los Angeles

Gaining legal status is critical for undocumented minors, experts say. It authorizes them to work and to travel outside the country and, most importantly, it means that they cannot be deported, unless they’re convicted of a serious crime.

The recent backlog in SIJS petitions both exposes and masks a problem that has plagued the program for years. Because individual countries are subject to a per-country limit of seven percent of the total available special immigrant visas every year, each country only has access to roughly 695 special immigrant visas per year, regardless of its proximity to the U.S. or its social or political push factors – violence, corruption, poverty– that contribute to mass migrations.

This translates to waiting lists that can stretch back five or more years for juveniles fleeing the endemic violence in Central America. For kids like the ones housed at Casa Libre, legal limbo is yet another obstacle to overcome.

“Every ‘-ism’ you can think of, they’re dealing with it,” Bustamante said. “And every trauma you can think of, they’re dealing with it.”

“But the biggest trauma is being completely alone. There’s no worse trauma than that.”

Complicating the delays in the application process is the opaqueness of the waiting list.

“There’s no official way to check on your place in line,” Benson said. “Nobody knows.”

Although she advocates for a more open system, Benson warns that publicizing long delays for SIJS petitioners could have adverse immigration consequences.

“ICE traditionally has said if a visa is not available to you within a short period of time, we are not going to delay your removal proceeding,” she said.

The fear is that as the State Department continues to list certain countries as oversubscribed in the E4 category, as it did in 2016 with Guatemala, Honduras, El Salvador and, later, Mexico and India, that ICE officials will use the delays as justification for removal.

But in the current political climate, Bustamante still sees the law as being the best tool to combat anti-immigration sentiments in America.

“When people say, ‘we’re a nation of laws,’ they’re absolutely right,” he said. “And those laws state that these kids can come to the border and ask for relief. And more so, those laws, since 1990, say that when a kid is a victim of abandonment, abuse or neglect that they can stay here.”

Bret Schafer
is a Master of Public Diplomacy Candidate at the University of Southern California and the Editor-in-Chief of Public Diplomacy Magazine. He earned a B.S. in Radio/Television/Film with a minor in Sociological Studies from Northwestern University. 

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