The nation’s immigration machinery has been thrown into confusion since 2017, when the government issued new rules intended to wind down the Deferred Action for Childhood Arrivals (DACA) program. Youths under age 21 are paying a stiff price.
The 17-year-old undocumented immigrant who entered the federal court in Federal Plaza, Manhattan, one morning last month had already spent a year in a detention facility.
That was 345 days more than he was supposed to be there.
According to Marilyn Alvarado, a paralegal at the Safe Passage Project, undocumented immigrants under the age of 21 are not supposed to be detained for more than 20 days.
“If they are under the age of 18, they are supposed to be sent to an ORR [Office of Refugee Resettlement] shelter,” said Alvarado, whose organization, a New York-based not-for-profit, offers legal services to young undocumented immigrants.
The reason for the delay?
The young man, whose name cannot be disclosed since he is a minor, was caught in the federal government’s slow-moving immigration machinery. The ORR’s determination of who would be a suitable guardian for him awaited a decision by the Department of Homeland Security about whether or not to issue a deportation order.
The judge decided that final resolution of the case would still have to await the two agencies’ agreement.
Most of the immigration cases involving a minor are handled by the ORR’s network of state-licensed care providers, which take care of the kids until a legal guardian or a family relative is put in charge. In fiscal year 2017, 32 percent of unaccompanied minors were placed in an ORR facility, according to data shared by ORR on its website.
The average stay of a child in a shelter care was 41 days, the data shows.
Thousands of children are believed caught in this bureaucratic limbo since the federal government stepped up its already-aggressive policies against illegal immigration.
In 2012, they received the possibility of additional protection offered to children born in the US to undocumented immigrants by the Deferred Action for Childhood Arrivals (DACA) initiative, which was issued in the wake of the 2001 Development, Relief and Education for Alien Minors Act, known popularly as the DREAM Act.
But the system has been thrown into confusion since 2017, when the government issued new rules intended to wind down DACA. The future of the program has in effect been held hostage to a bitter Congressional debate over immigration reform.
Meanwhile, too young to be “Dreamers,” these youngsters occupy an uncomfortable place in the charged political climate over immigration.
The majority of the clients helped by Alvarado’s organization are undocumented immigrants from the so-called “Northern Triangle” of Central America: Guatemala, Honduras and El Salvador.
“It will take judges between six and seven years to resolve just the cases from there,” Alvarado said.
According to federal law, entering the country without the approval of a border officer is a misdemeanor—a civil violation—punishable by up to six months in jail.
But “years ago, there were more reasonable minds” on dealing with undocumented immigrants, said Jennifer Williams, supervising attorney at The Legal Aid Society-Immigration Law Unit in New York.
“Officials would think ‘they have been here for a long time, they have family, a job,’ and they would be given a second chance to become immigrants.”
Today’s adversarial legal environment is making it harder and harder to help these young people and their families, Williams added.
“Uniformly, there is a much higher sense of fear, concern, anxiety, despair,” Williams said.
The fear has spread even in so-called sanctuary cities like New York.
See also: How Safe Are Sanctuary Cities?
The fate of undocumented immigrants under the age of 21 is especially uncertain.
“The immigration system is (already) a maze within a maze within a maze,” said Meryl Lynn, who was at the hearing, and works for the New Sanctuary Coalition of NYC, a non-profit that offers help to undocumented immigrants in the city.
“It is really dark in there.”
But as the immigration and criminal justice systems collide, things have gotten even darker.
The backlog of what were once considered traditional immigration cases has grown—and has contributed to making the process confusing for judges, attorneys and immigration advocates.
Recent cases showed that young undocumented immigrants are kept longer in a detention facility just waiting for their case to be heard.
Organizations like the Safe Passage Project have became fundamental in the last couple of years as sources of reliable legal advice for undocumented immigrants. Under the Constitution, only citizens have the option to receive a lawyer from the government if they cannot afford one.
With limited access to legal counsel, young undocumented immigrants are unlikely to be aware of their rights.
Living with the fear of deportation, however, not only affects immigrants’ lives legally; it also takes a psychological toll on them.
“The level of anxiety was enormous after the election,” said George Finger, a coordinator at the Staten Island, NY-based non-profit El Centro del Inmigrante, which provides social services for local immigrants.
The families Finger serves worry about the potential arrest, loss of employment or deportation of family members. While not as severe as it was a year ago, he says, the fear has morphed into a less dramatic, but more permanent form.
“It’s a low-level, chronic anxiety that wouldn’t be undetectable,” said Finger.
But recently, counselors and scientists have become particularly concerned about the long-term consequences this type of strain will have on children who worry that they or their caregivers will be detained after a raid by Immigration and Customs Enforcement agents.
A number of studies in recent decades suggest that worrying over a period of months or years can be as traumatizing to a child as divorce or the death of a parent. And the effects can last for decades.
Lynn, who has an 11-year-old son, was touched by what happened to the young man in the courtroom.
“When I went out of the courtroom I called my husband and started crying,” she said.
“I thought about my son who has so many privileges only because he is born here, and these people (have none), even after all they went through.”
Irene Spezzamonte is a 2018 John Jay/Harry F. Guggenheim Justice Reporting Fellow. She welcomes comments from readers.