Margarita is 9 years old and crossed the border between USA and Mexico three weeks ago, where she was detained by an agent of the Border Patrol. She arrived safely in the custody of a coyote who brought her from Guatemala. The trip cost $ 10,000 and was paid for by her mother, who lives undocumented in the United States for just over eight years. Last week she was released and now she must face a process of deportation where will you ask asylum.
“You have to wait to be called to go to court,” says Alex Gálvez, an immigration attorney practicing in Los Angeles, California. “The notification may arrive in about three or four weeks, due to the traffic jam in the Immigration Court. We hope that the first audience will have it in early 2022 ”, he adds.
The little girl is in good health after the long and dangerous journey of some 1,600 miles (2,600 kilometers) through Mexico, one of the most dangerous routes in the world controlled, in many cases, by drug trafficking. There were no delays or setbacks, no attempted kidnapping or rape. But not everyone has the same fate.
Last week Brian, a Mexican immigrant who crossed the Wall Through an area of Texas he fell from a height of 12 feet and fractured his spine and an ankle. “He will not walk again,” says Gálvez. “He is admitted to a hospital in El Paso.”
On Tuesday the Department of Homeland Security (DHS) said that the day before the Customs and Border Control Office (CBP) had detained 429 Unaccompanied Minors (UAC) at the southern border, another 4,231 were in the custody of the Border Patrol and 15,193 were in the hands of the Department of Health and Human Resources (HHS). But it did not disclose data on children lost, injured or killed at the border or on the way from their countries of origin.
And in the event of tragedies or incidents, many wonder how much responsibility falls on the parents or guardians who send them seeking asylum, whether there are legal mechanisms to protect them, and what the governments involved in the exodus are doing to prevent tragedies like Brian’s. , or worse still, lose your life in an attempt to escape, in many cases, death.
Whose fault is it
Can you sue a father who pushes a son to leave his country? “The question is about tort law, not American immigration law,” says Stephen Yale-Loher, a professor of immigration practice at Cornell University School of Law in New York. “The question is whether parents can be sued for negligence in allowing their children to travel alone from their home country to the United States.”
In practice, he adds, “these trials are very rare, for a number of reasons. First, the child (or someone who is suing on the child’s behalf) would have to sue. And children are unlikely to be aware of US liability law. “
“And they are probably not willing to sue their parents,” he says. “Also, even if they wanted to sue, they couldn’t afford an attorney to represent them.”
Yale-Loher further says that “even if a child wins a tort lawsuit, many parents would not have money to pay damages.”
A second question then arises. Is it legal to allow a child to travel alone and cross the border alone? “Nothing in US immigration law prevents this,” Yale-Loher says. “Immigration law says that anyone who has a well-founded fear of persecution can apply for asylum. There is no minimum age requirement to request asylum at the border ”.
Attorney Barbara Hines, a former professor at the Law Clinic at the University of Texas School of Law at Austin, says that “the fact that thousands of minors are taking risks demonstrates the desperation, danger, violence and poverty in their lives. countries of origin”. And that there is a serious “lack of adequate mechanisms to reunite with their families in the United States.”
Where the foul is committed
For Lilia Velásquez, associate professor at the University of California, San Diego, School of Law, “the problem has been one of jurisdiction. And also about who would be the person or entity that is going to sue those parents ”.
“If you come from Guatemala, for example, it is very difficult for the authorities of that country (or El Salvador or Honduras) to process the parents for abandonment since they have not been able to prevent them from fleeing to the United States” , Explain.
And given the fact that they are not prosecuted in their countries of origin for negligence, “there is no political will to sue the parents. And in the United States they cannot do it because, in many cases, the parents are not here ”.
Velásquez says that “the desperate situation in which these people find themselves in their countries should also be considered. I do not believe that parents will suffer consequences for sending them alone to seek asylum when they flee for their lives. That criminal condition is not that important to them. Parents make desperate decisions because the lives of their little ones are at stake. The priority is to protect them. And it is useless to do something against the parents because it will not change the situation that generates the exodus at all ”.
The trip is not illegal
Before finding guilty, it is necessary to discover the true causes of the exodus of migrants to the United States. In 2013 a report from the University of California warned the United Nations High Commissioner for Refugees (UNHCR) that due to poverty, lack of opportunities and corruption of the Northern Triangle governments, thousands of people were fleeing in search of asylum. in United States.
Eight years later the situation has worsened. But internally, “Republicans blame the new administration of President Biden for the increased flow at the border, and Democrats note that the increase began during Trump’s presidency last year, based on a large rebound in the summer of 2019. ”Says Rebeca Sánchez-Roig, a former immigration attorney and attorney who practices in Miami, Florida.
He added that the factors that generated the exodus in 2013 worsened and that many parents take a great risk in sending their children knowing the dangers that exist at the crossing.
“What responsibility do the parents of these children have in risking them on such a dangerous journey?” She answers herself. “Parents are legally and morally responsible, ultimately, for the health, well-being and safety of minor children. And the government can bring criminal charges against parents or legal guardians if a child is designated as an Unaccompanied Minor ”.
But it warns that in more than 80% of the UAC cases registered by the government, children arrive at the border between Mexico and the United States traveled with traffickers (of people or coyotes), as in the case of Margarita.
Regarding the legality or not of the trip, Sánchez-Roig says that “it is not illegal to allow a minor to travel alone. In fact, there are many reasons why a minor may travel alone, including to comply with court orders regarding parental custody or visitation. Countries have laws and legal requirements for UAC travel. In general, the law requires that children and adolescents traveling alone or with third parties must have the authorization of their parents or legal guardians. And although it is an article from 2014, it establishes the basic legal premises for UAC trips to the Northern Triangle and Mexico ”.
What the white house says
The Biden government is not talking about lawsuits or those responsible, but about finding solutions to repair a serious problem that was generated some years ago.
“Our message has been very clear and we hope that people really take into account what we are trying to explain, that now is not the time to come, that it is a very dangerous path,” an official from the House told Univision Noticias. White.
“We are trying to help the countries of the Northern Triangle (El Salvador, Guatemala and Honduras) and Mexico, so that they apply their asylum requests from there and not make the trip to the border. Obviously, we are trying to help and at the same time we recognize the needs that motivate the flight, including the pandemic and the serious damage caused last year after the passage of two hurricanes, “he added.
The official also said that “the commission led by Vice President Kamala Harris, appointed by Biden in March,” is trying to find concrete solutions and help countries to work on solving the problem themselves and not let families and minors risk their lives ”.
Biden’s plan is to invest about $ 4 billion over four years to create jobs and improve infrastructure in the countries that generated the exodus. Simultaneously, the White House says that “we are trying to improve our asylum system,” an issue where Congress has not yet spoken.
In early March Elizabeth Kennedy, one of the principal researchers at the University of California who warned UNHCR of the exodus, said that “if the United States or any other country wants to help change the reality of the Central American countries, they have to be thinking in the long term, they have to be dedicating programs and projects for at least 10 years, because at least that is what it’s going to take to make a change. “
“And while that time is advancing, they need to have a plan to protect those people who flee because until the reality does not change, these people need protection,” he concluded.