With a suddenness that has caught even the most seasoned unaware, waves of children from Central America are crossing the border. Most of them are on their own, without their parents, so many that the president has declared it an "urgent humanitarian situation."
Sixty-thousand children are expected to cross into the U.S. this year, most of them from Honduras, Guatemala and El Salvador. (For some perspective, from 2006 to 2011 an estimated 8,000 unaccompanied children crossed the border each year.)
These children — many of whom are younger than 13, some as young as 4 and 5 — are taken into immigration custody and then transferred to secure facilities around the country. The shelters are filled to capacity, so in recent weeks the government has started using military bases.
Each child will be charged with breaking the law and placed in deportation proceedings. They'll be required to go before an immigration judge, to face a government attorney in a formal courtroom.
But many if not most won't have an attorney to speak on their behalf. They will be treated like adults, unlike in our state courts where children's cases are handled separately and where there is a standard called "best interests" of the child.
There's not a precise definition for best interests, but in our juvenile courts it means a judge, when placing a child, will consider whether the child will be safe, whether the child will be separated from family against his or her wishes, whether this is what the child wants.
There is no best-interests standard in immigration law, no requirement that judges consider what's best for the child before them even though the decisions can carry life-and-death consequences.
Consider the story of Eliseo. He arrived from Honduras at the age of 12, and was caught immediately after crossing the border into South Texas, taken into custody and placed in a detention facility in Houston. He was terrified to be sent back, but he wouldn't talk about his life.
I run an organization that tries to make sure that these children, all of whom face deportation, have their best interests attended to by immigration judges and enforcement officials. The U.S. has a long tradition of offering refuge for those who fear for their safety, but there's a gap in our law when it comes to children.
The reasons for this mass migration are tangled — first and foremost, unrelenting violence that is going unchecked. The United Nations reports that Honduras is the murder capital of the world, with Guatemala and El Salvador close behind. There is severe poverty, no education, no health care, not enough to eat. For many children, it's a desire to be reunited with parents, where they will be safe.
We assign child advocates to the most vulnerable of these children, but given our size, we can serve only a fraction of all the children arriving right now.
When we got wind of Eliseo's case, we assigned him a child advocate, in this case one who speaks fluent Spanish. His job was to learn Eliseo's story and advocate for his best interests. The advocate would visit Eliseo, spend time with him, play cards and listen. Over time, Eliseo began to talk about his life.
It turned out he was orphaned at the age of 7. There were no relatives to go to, no family friends to take him in. He ended up on the streets, begging for food. When he was 11, the gangs started stalking him, trying to get him to join. And so Eliseo fled north, hoping to reach safety.
Armed with this information, the advocate made the case that it was not in Eliseo's best interests to be sent back and that Eliseo should be eligible for protection.
To be clear, it's not always in a child's best interests to remain in the U.S. Rafael, an 8-year-old Salvadoran boy, was sent to the U.S. by his mother to "surprise" his father, who lived here with a girlfriend who, it turns out, had an extensive criminal history. After months in custody, he said he wanted to go back, but everyone worried for the boy's safety. What mother would send her son to surprise her estranged husband?
Rafael's child advocate arranged for a teacher in El Salvador to visit the mother's home. The teacher learned that Rafael's father had threatened his wife with violence if she did not send their son. The teacher found a wall covered with mementos — Rafael's report cards, photographs, artwork. The advocate recommended that Rafael return to El Salvador where he clearly had a loving parent and where he'd be safe.
Wherever one stands on the immigration debate, we need to recognize that unaccompanied children are the most vulnerable. It's time to create an immigration system that treats children as children, to enact a best-interests standard, to provide legal representation, to ensure that each child has an advocate at his or her side. We need to make sure that wherever they land — here or back in their home country — they'll be safe.
Maria Woltjen is director of the Young Center for Immigrant Children's Rights at the University of Chicago Law School.