Unaccompanied Children, Choice, and Limitations of Legal Relief in the United States Border

The city of New York’s defiantly high Trump Tower in Columbus Circle was the epilogue to my daily underground train ride, to my internship at the Feerick Center for Social Justice, in a car too full of people. Oftentimes, the struggle for train space would flare into a protracted argument spectated by many who are too squished in to be able to do much about it. I walk from the train to the Feerick Center office through a street with a few merchants. That street seemed to find a way to fill itself with people, however. People on the streets optimistically look for a friend to hand them fifty cents to ride the train.

My work with unaccompanied children and the media-proclaimed “surge” took me to San Antonio, Texas. Over there, the streets and the skyline were nearly empty. Most people were privileged to spend some of their fossil fuel reserves on transportation. The people were so friendly that the most oppressive feature about the city was the humid heat. San Antonio is home to The Alamo, a former mission, hospital, and military post that now serves as a reminder of the absurd and horrific outcomes that could come from disputes over land. In the Battle of Alamo, defending Texan settlers suffered a horrific loss in the face of a Mexican government that so brutally asserted its power on lands over which it had claimed prior ownership. Mexico had occupied a large portion of the Western United States for years and Mexico wanted to keep its claim. It is exactly the sentiment of “I was here first and I get to control what happens,” including violent action and depravation, that has later set the stage for children to be confronted with a loss of control over their own choices.

The basic questions of “who owns the country” or “who is a national” is the question that underlies immigration law and policy. Countries answer this question in different ways. In the United States, the question often gets answered by the sentiment of “I was here first.” The notion of being “here first” grants the citizens extensive powers and privileges including the very basic presumption that they have the right to stay. Having the right to stay necessarily extends to having the right to have amenities to be able to live their lives – basically they have the privilege of human rights.

Because the hierarchical racial structure in the United States is so clearly rooted in American culture, it affects the logic and reasoning of state policy, including immigration. The idea that the American national is a descendant of a white, male, landowning ancestor causes a powerful presumption of who was or was not “here first.” Although the sentiment of prior ownership is what is asserted as a justification for citizenship, it is a claim that comes from the presumption that historically only one particular “race of people” was “here first.” Yet, it does not survive scrutiny when history is actually examined. When I walk down the street and meet my fellow Filipinos in New York, it may be with a tacit understanding that most of our families made the migration journey from the Philippines to the United States recently. However, down in Louisiana, a Philippine-descended American may have had Filipino ancestors in that area since before the conception of the United States. Since the galleon trade involved the Philippines and Mexico in 1565, Philippine sailors had frequently jumped ship and stayed in America. The earliest Louisiana settlement of Filipinos is said to have been around since 1763. For some unaccompanied children, their claim to being “here first,” or having an ancestor who had been so may be even stronger.

The justifications that are “acceptable” and the forms of legal relief available are so limited that it can inhibit the freedom to choose and deemphasize the agency of the migrant. In reading their stories, I found that many of the children were brave agents of their own path. They dared to follow a guide or journey on their own in pursuit of a goal and in pursuit of a choice. However, those goals and choices are not the focal point of our immigration law, which concerns itself with the justification or excuse of why someone who is not “here first” should be “allowed” to stay. For example, a person may be “allowed” to stay because they would endanger their life otherwise. Similarly, a child may be “allowed” to stay because he or she would otherwise not have a “proper” home or family. When forms of relief and the child’s choice intertwine, there is no problem. In many other instances, an opportunity for development in the law arises.

I questioned whether to devalue the primacy of the child’s choice due solely to the type of legal relief available to them. For example, I witnessed many cases where the child had a case for a grant of legal relief on the basis of neglect and abandonment or abuse. The way the story goes is that the father abandons or abuses child, often due to alcoholism or death from gang violence, and the mother who does not work may be considered “neglectful” because mother does not work and child is left to earn money for the family by farming at age 12. However, this point of view obscures the role of the child’s choice. Equally often, I witnessed those same cases with the children declaring that they started working because they had a strong desire to support their families – a brave choice that should be respected.

As the person helping to write the case summaries, I felt a palpable tension between doing my best to explain the facts in a way that aligns neatly with the form of relief available and feeling like the factual narrative I was weaving was actively taking away pieces of the child’s life that they themselves had deemed important. Of course, I am not saying that there is necessarily a willful attempt at depressing the choices of the children. In fact, a practitioner with whom I spoke specifically told me about how they made a decision to pursue a strong asylum claim for the child instead of SIJS. The reason for that was the child did not want to rule out his ability to petition for his parents, despite any abuse, neglect, or abandonment they may have inflicted upon him.

Nevertheless, some tension continues to exist because of the framework of the law – focusing less on the choice to migrate and more on what justifiable reason they have for being “allowed” to stay. As the United States struggles to discard its former racial hierarchy, it still needs to find answers to the question of who we are and who we should respect. A good place to start is to respect all humans, who, whether adult or children and from any part of the world, deserve and have inalienable and unassailable rights. All humans have a choice that should be respected. All humans have the right to migrate.

I came out of my experience in San Antonio and New York City with a lot more questions than answers. I return to Fordham with a better sense of the tensions that underlie American culture and society, and a plan to do more about it. Hopefully, the different perspective I bring as a resident Filipino national can help guide their path towards a more racially equal society.