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Asylum for Kids: We Can Do Better

Deborah Rhode
The National Law Journal
December 19, 2001


Although recent events have brought new and welcome attention to
long-standing violations of human rights, one group that still remains
largely out of sight and out of mind is children.

Children account for about half of the world's 40 million refugees, and many
are targets as well as bystanders in adult conflicts. Rape, torture,
prostitution and conscription are pervasive. Children, the most vulnerable
victims of abuse, also are least able to mobilize the legal and political
resources to combat it.

That is true for child refugees in the United States as well as those
abroad. According to the Immigration and Naturalization Service, about 8,500
children seek asylum in the United States annually. Almost three-quarters
come unaccompanied, and about 5,000 lack proper documentation. Those without
appropriate papers are subject to detention under the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996. The conditions in which
these children are held are shameful by any standards, particularly those of
a country that aspires to be a leader on international human rights.

The INS detains asylum applicants in about 900 sites across the nation,
mostly local jails. INS guidelines provide that children should be housed
separately from adults, but inadequacies in agency procedures and detention
facilities mean that many minors end up in juvenile delinquency institutions
or adult jail cells. Reports document inhumane conditions and human rights
abuses in such facilities: Assaults, sexual violence, strip searches and
inadequate access to health care are common. As the American Bar
Association's then-President Martha Barnett noted in February's ABA Journal,
family members are routinely separated and housed at different sites. Many
detainees experience cramped living conditions, no privacy and limited
contact with the outside world.

Contact with lawyers who could help remedy the situation is especially
limited. Detained asylum seekers have no right to counsel, and an estimated
90 percent receive no legal representation. Children are typically unable to
afford private lawyers and are ineligible for publicly subsidized
assistance. Congressional restrictions prohibit representation of
undocumented aliens by programs that receive funding from the federal Legal
Services Corp., and many states have similar prohibitions. Detention
facilities are often in remote locations, which reduces access to pro bono
programs.

As a result, most detained children either proceed pro se or accept
voluntary deportation. Those who attempt to navigate a system designed by
and for lawyers are at a severe disadvantage. According to an overview by
Christopher Nugent and Steven Schulman, the small minority of detained
children who obtain counsel are four times more likely to succeed in their
asylum claims.

DAUNTING, EVEN WITH COUNSEL

Even those minors fortunate enough to receive legal assistance or to
establish their right to an asylum hearing without such help still confront
daunting conditions. Because juvenile cases do not receive priority on INS
calendars, children frequently experience extended delays in receiving a
hearing. In the interim, they are cut off from family -- and opportunities
for contact, even by phone, are often prohibitively expensive. The absence
of a consistent and familiar caregiver while in INS custody adds to the
trauma of confinement and is particularly harmful to young children and
those who are survivors of physical abuse. Panic, anxiety and depression are
common responses and prod many minors into abandoning valid asylum claims.

We can and must do better. An obvious start would be to remove restrictions
on public funding for undocumented aliens, or at least for those under 18,
and to increase dramatically their access to pro bono services. The ABA's
Immigration Pro Bono Development and Bar Activation Project provides grants
and assistance to state and local bar association projects. Some, like the
South Texas Pro Bono Asylum Representation Program, offer a model for
effective initiatives.

We should be proud of those efforts but embarrassed by the vast unmet needs
remaining. It is a shameful irony that the nation with the world's highest
concentration of lawyers and a leadership role in global human rights
campaigns does so little to protect vulnerable children. Our profession has
an obligation and an opportunity to do better by those who need help most.

Deborah Rhode, who teaches at Stanford Law School, is director of the Keck
Center on Legal Ethics.

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