The Forgotten Immigrants

Lis Wiehl

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Blocks away from the footprints at Ground Zero, a high-rise building looms over lower Manhattan, functioning as our 21st century Ellis Island. Once a month at 26 Federal Plaza, the New York Headquarters for the Immigration and Naturalization Service (INS), children pile into a windowless courtroom, anxiously awaiting a judge’s decision — who can stay in the United States and who must go.

Every child has a story. Some fled persecution from their homeland, some have been abandoned and are simply stranded. But there is a common link — they’re all undocumented and have been neglected, abandoned, or abused. All too often, unaccompanied and undocumented children experience horrors, such as trafficking, prostitution, and domestic abuse. They’re treated like an afterthought, tossed to the jaws of the foster care system without representation.

Stranded, undocumented juveniles are caught in a web between a crackdown on national security (especially since 9/11) and child protection. Immigration officials seek to deport many of the 5,000 apprehended children each year, citing the need for strict national border security.

But what about the 500 kids a day who wait anxiously in detention for a verdict? Advocates of immigration control say these policies discourage parents in foreign countries from sending unaccompanied children to the U.S. Homeland Security says they have one rule for everyone, and won’t treat a case differently just because the subject is a child. Christopher Bentley, a representative for the Bureau of Citizenship and Immigration Services, says because of 9/11, the way this country deals with administering immigration benefits and services has changed. “The law for anyone who comes to the U.S. is that there are special steps that must be taken,” he says. “That someone is not of a certain age is not the mitigating factor — the factor is whether they have permission to be here.”

And abandoned children don’t stand a chance without the proper safeguards of a legal advocate. “These are kids that don’t have adults looking out for them, so they don’t have adults to get them an attorney,” says Eve Stotland, senior attorney at the Door’s Legal Service Center. “They are on their own.” Often, the only choice is underground or on the streets.

Fortunately, we do have some laws designed to protect these children, regardless of their immigration status. In 1990, Congress enacted Special Immigration Juvenile Status (SIJS), a green card created specifically for neglected, abandoned and abused children. The federal law shelters this niche of undocumented children, helping them obtain lawful immigration status in the state juvenile system. “The very nature of the word ‘special’ is in context,” Bentley explains. “SIJS is an exception to the general rule specifically to accommodate these abandoned children.”

Here’s how SIJS works:

To qualify, a child must enter the state welfare system and be placed in long-term foster care or a group home. The real catch is that these requirements must occur in a timely manner or they lose the protective umbrella of SIJS. Timely, under federal law, means the child must be under the age of 21 at the time of application and at the time of adjustment. Unfortunately, state law is usually more stringent and requires the juvenile to complete the process by age 18. The catch-22, of course, is that you first have to know SIJS exists to take advantage of the opportunity. That’s problematic because there aren’t guidelines in place to address a child’s immigration status in foster care. It’s possible, and highly likely, that many of these children will slip through the system. But, while the government makes no exceptions for age, there is some good news. “Child advocates are meeting with foster care officials and through effort, awareness has improved, even though it’s always a struggle,” says Stotland.

These days, even with a lawyer on the case, an application for SIJS can take years, and sometimes fails because the time limit expires.

Bintou Boboutou, a girl from the Ivory Coast, landed in foster care when she was 16-years-old. While her green card application collected dust on a stack of papers at INS, Boboutou forged a new life for herself in New York. She graduated from high school, worked summers as a counselor, and won an engineering scholarship. But Boboutou’a papers never reached the top of the stack. Her lawyer, Michelle Caldera, says immigration authorities lost her application at least three times. That should be illegal!

Finally, days before her 21st birthday, officials called for her fingerprints and for a green card interview, but the process wasn’t completed by her birthday. Days separated Boboutou and a green card. Within minutes, she went from accomplished scholar to illegal immigrant — subject to deportation. While Boboutou’s lawyers mounted an appeal, the city allowed her to stay in foster care. But her studies and career flat-lined while she concentrated on avoiding detention.

Boboutou’s story is just one of thousands, signaling a radical deficit in legal immigration for children. It’s hard to believe our government does not afford these abandoned children the right to appointed counsel. Only 10 percent of children appearing in immigration court are represented. Advocates of restricting immigration maintain that special juvenile status opens the door for people to send their children here without considering the risks — a virtual free-for-all. That may be true to some degree, but we can’t just turn our heads and pretend this isn’t happening. Don’t get me wrong, I’m not suggesting that every mother and father outside the U.S should send their child here illegally, but SIJS or not, it’s going to keep happening. So, let’s find a safe and efficient way to provide these neglected and abused children with sanctuary and an opportunity for success.

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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.