Can Children Be Granted Asylum to Escape Sexual Violence?

President Trump issued a Proclamation on November 9^th that temporarily suspends asylum for migrants entering from Mexico unless they present themselves to a port of entry. The proclamation appears to be drafted skillfully and thoughtfully, in contrast to other immigration restrictions. It cites prior presidential actions of this nature, and a Supreme Court decision that upheld President Bush’s suspension of asylum for Haitians (Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993)).

The proclamation also correctly states the following:

“Members of family units pose particular challenges.  The Federal Government lacks sufficient facilities to house families together.  Virtually all members of family units who enter the United States through the southern border, unlawfully or without proper documentation, and that are found to have a credible fear of persecution, are thus released into the United States.  Against this backdrop of near-assurance of release, the number of such aliens traveling as family units who enter through the southern border and claim a credible fear of persecution has greatly increased.  And large numbers of family units decide to make the dangerous and unlawful border crossing with their children.”

The policy appears to be legal. But what is its human toll? 

Consider Osorio v. Attorney General of the United States, decided about two months ago. 

Mothers and their minor children fled “physical and sexual violence perpetrated by gangs in their home countries of Honduras and El Salvador.” 

To President Trump’s point, they were detained in Texas and later moved to Pennsylvania, still under detention. The mothers requested asylum. They were denied a court hearing because, according to the court, they had no connection to the U.S. other than crossing the border illegally.

But their children applied for “SIJ” status (“special immigrant juvenile”). This is a juvenile section of the immigration act. As the court explained: “Alien children may receive SIJ status only after satisfying a set of rigorous, congressionally defined eligibility criteria, including that a juvenile court find it would not be in the child’s best interest to return to her country of last habitual residence and that the child is dependent on the court or placed in the custody of the state or someone appointed by the state.”

This appeals court ruled in September that these children cannot be immediately deported, nor can their mothers (who were subject to immediate removal but were not deported by the Obama administration).

The president’s proclamation does not apply to their case. It appears to address the situation of mothers and minor children in the migrant caravan. They cannot enter; they cannot file motions to a court for asylum under the Immigration and Nationality Act of 1965; and if they step foot on U.S. soil, they can be removed immediately without a habeas corpus hearing.

In my opinion, this is legal. Some will say that the United States has no obligation to shelter these mothers and their children. I believe America is better than that. That is why Congress passed a law for “special immigrant juvenile(s).”