Asylum is the legal protection of an individual by the United States government. Unaccompanied children apply through the United States Citizenship and Immigration Services (USCIS) when they have suffered or fear that they will suffer persecution in their home country because of their race, religion, nationality, membership of a particular social group or political opinion. To be eligible for asylum as an unaccompanied minor, the child must be under the age of 18, not have lawful immigration status in the United States, and not have a parent or legal guardian in the United States who is able to provide care and custody.
The asylum application is initially filed with USCIS, or, if the child is subject to removal proceedings, the asylum application may be filed directly with the immigration judge. The exact procedure depends on the court overseeing removal proceedings for the child. If USCIS denies the asylum application, removal proceedings will be initiated if they have not yet been initiated. The child may always apply for asylum again from the immigration judge.
Generally, those seeking asylum must file an application within a year of arrival in the United States. However, the USCIS has carved out an exception to the one-year filing deadline for unaccompanied minors, allowing them to complete the form in a time the Asylum Division deems appropriate. USCIS officers conduct interviews with the UAC, considering the child’s background, age, stage of language development, and overall level of sophistication.
The Special Immigrant Juvenile Status (SIJS) classification opens the door for children who have suffered abuse, abandonment, or neglect by one or both parents to eventually apply to become lawful permanent residents. To be eligible for SIJS classification, an unaccompanied minor must obtain a juvenile court order stating that the child is a minor and is unmarried, is dependent on the court, has suffered abuse, abandonment, or neglect by one or both parents, and that it is not in the child’s best interest to return to his or her home country.
For an unaccompanied child to qualify for lawful permanent resident status after obtaining SIJS, the individualmust file a Form I-485, Application to Register Permanent Residence or Adjust Status and meet the following requirements: (1) be unmarried; (2) be physically in the United States when the form is filed; and (3) not be inadmissible to the United States. Grounds for inadmissibility range from having a communicable disease of public health significance to having violated a state or federal law or regulation relating to a controlled substance. The full list of reasons for inadmissibility are listed in the Immigration and Nationality Act Section 212(a).
The U visa is reserved for victims of certain crimes who are essential to the investigation and prosecution of criminal activity. An unaccompanied child may be eligible for a U visa if (1) they were a victim of qualifying criminal activity; (2) they suffered substantial mental or physical abuse from the criminal activity; (3) they have information pertaining to the criminal activity; (4) they have been, are, or are likely to help law enforcement’s investigation and prosecution of the crime; and (5) the crime took place in the United States. A few examples of qualifying criminal activities include abduction, domestic violence, incest, kidnapping, murder, rape, torture, and witness tampering.
Applying for the U visa first requires the child to obtain certification from a law enforcement agency stating he or she has been a victim of a qualifying crime, has suffered physically or mentally due to the crime, and has been or will be helpful in the investigation and prosecution of the crime. The child then files a petition with the USCIS, including the certification, a personal statement describing the details of the criminal activity, and proof the applicant meets all the eligibility requirements for a U visa.
In an effort to protect the victims of human trafficking and increase both investigations and prosecutions, Congress passed the Victims of Trafficking and Violence Protection Act. The T nonimmigrant-status visa may protect unaccompanied children from modern-day slavery in which traffickers trap young individuals with false promises of a better life and employment. The T visa is reserved for individuals who are victims of human trafficking, and it allows them to remain in the United States to aid the investigation and prosecution of the traffickers.
To qualify for a T visa, the child must submit an application showing that he or she (1) has been a victim of a severe form of trafficking, such as labor trafficking or commercial sex trafficking, in the United States; (2) will comply with the requests of law enforcement in the investigation or prosecution of human trafficking (although certain exceptions apply to this rule for minor victims of sex trafficking); and (3) would suffer extreme hardship if removed from the United States.
Generally, unaccompanied children who are found at the United States border are apprehended, processed, and then detained by Customs and Border Protection (CBP). CBP also initiates removal proceedings. Within 72 hours, CBP must transfer custody of unaccompanied children to Health and Human Services, Office of Refugee Resettlement (ORR). Unaccompanied children are then placed into a federally funded shelter and ORR attempts to reunify the child with a family member or family friend living in the United States who is able to provide for their care and who makes assurances that the child will appear at his or her removal hearing.
As with adults, children are not provided an attorney to represent them in immigration proceedings. However, they are allowed to hire counsel or find pro bono counsel who will represent them free of charge. Congress has directed the Secretary of Health and Human Services to make every effort to utilize pro bono counsel for unaccompanied children.
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