Since October 2013, more than 52,000 children — most from Central America and many of them unaccompanied by adults — have been taken into custody. That’s nearly double last year’s total and 10 times the number from 2009. They entered illegally. So what legal pathways do these unaccompanied minors have that may allow them to stay in the U.S.?
First it is important to make a distinction between refugee and asylee. The difference between an asylee and refugee depends on where a person applies. People outside of the United States must apply for refugee status. People who have already made it to the United States border or the interior (by legal or illegal entry) can apply for asylum status.
Therefore unaccompanied alien children are technically asylum seekers.
To qualify for asylum status in the United States, one must also demonstrate that he or she is unable or unwilling to return to his or her home country due to past persecution or have a well-founded fear of persecution if he or she returns. The reason for persecution must be related to one of five things: race, religion, nationality, membership in a particular social group, or political opinion. With a grant of asylum, an individual can live permanently in the U.S., work, travel abroad, and even have a path to citizenship.
Many have pointed to gang violence as a cause for this influx of minors from Central America. In fact, a study by the U.N. High Commissioner for Refugees found that the majority of the unaccompanied children are motivated by safety concerns, fearing conditions back home. U.S. Customs and Border Protection’s analysis determined that many children from Guatemala may have come for economic opportunity, but Salvadoran and Honduran children often migrated from vary violent regions.
Determining asylum will be left to the discretion of a USCIS Asylum Officer. (See how USCIS trains its Asylum Officers based on their internal workbook.) It seems likely that many of these children could potentially qualify for asylum if they present their case well. However, it is unclear how many of these children will get quality legal representation or any representation at all.