Family Restoration for Unaccompanied Minors

This provocative guest post is from Regent Law 2L Maitte Barrientos, current Family Law student:

The number of unaccompanied minors crossing the border into the United States (and other industrialized countries) has significantly increased in the past couple of years.  Unaccompanied minors are children (or a person under a country’s legal age of majority) separated from both parents, and are not with and being cared for by a guardian or other adult who by law or custom is responsible for them.  Research shows that the average unaccompanied minor in the United States is fifteen years old, although some have been as young as eighteen months old.  These children seek asylum as they are abandoned in their homelands, sent away by their families, fleeing from military service, child marriage, female genital mutilation, or gang violence/forced recruitment, or are victims of smuggling and sex trafficking. Upon arrival into the United States, they are apprehended by the government and sent to detention centers (sometimes for months) where they will be placed in removal proceedings without a right to appointed counsel. Similarly, even if they happen to be released to a family member or sponsor to wait for an immigration hearing they are still in removal proceedings and not offered a green card or granted any kind of legal status.  Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir. 1974).  (Professor Kohm has written about this a bit in her article on immigration reform for children.) These lack of due process rights and long detention periods, in a confusing and restrictive jail-like setting, not only exacerbates the child’s trauma but encourages them to seek voluntary departure (which may impact their immigration eligibility in the future) exposing them to the violent persecution they were fleeing in their home country.
Understanding the procedures & available remedies for unaccompanied minors is a key to assisting these children. While every legal matter regarding children must be handled according of the best interests of the child, the procedures set in place for minors seeking asylum in the United States are governed by federal law, and are largely not in accordance with the best interest of the child standard.  An unaccompanied minor may obtain lawful permanent residence status in one of three ways: (1) as a special immigrant juvenile; (2) victim of trafficking under the Violence Protection Act of 2000; or (3) asylum.  The first two remedies are for children who played no active role in their migration journey and the third is the only remedy for children who did play an active role.  As a special immigrant juvenile the child will be in the custody of a state’s juvenile system and left to the judge to determine whether the child has faced abuse, neglect or abandonment in another country.  Only once that predicate order is made can the Attorney General allow for an application for special immigrant status.  If the child is a victim of trafficking, and suffered physical/mental abuse, they would qualify for a U-Visa and be allowed to remain.  Similarly, if the child has suffered a severe form of trafficking in persons and can demonstrate unusual and severe harm if removed from the U.S., they would qualify for a T-Visa (which is essentially a nonimmigrant visa and only after three years may the child apply for permanent resident status). 
This leaves the last recourse, asylum, to children who do not fit into the first two categories.  Asylum, however, is not an easy task to prove as the child may only bring a claim if they can prove a well-founded fear of persecution based on race, religion, nationality, political opinion or membership of a particular social group.  It is difficult for children fleeing gang recruitment and violence to establish these elements without any legal representation in this complex area of law.  Further, these kids find themselves making life impacting decisions in a new culture where the language barrier and stressful factors play a coercive part.   
Legislation tailored to the rights of child refugees and unaccompanied minors is key to accomplishing what is in the best interest for a child in the U.S.  One potential solution might be to categorize unaccompanied minors as a particular social group capable of persecution.  Secondly, the initial reason these children are persecuted is because they either lack parents or their government refuses (or is unable) to protect them from the violence.  This vulnerability should distinguish minor children from other youth and serve to define them as a particular “group.”  Another solution might be for the United States to ratify the Convention on the Rights of the Child (hereinafter “CRC”), the international legal document on children’s rights.  Though scholars disagree on the effectiveness of the CRC, others argue it gives children the right to a legal identity (Article 28), family unity (Article 9), freedom from arbitrary arrest or detention (Article 37), and protection to children in vulnerable conditions (such as those seeking asylum) under Article 22 of the CRC.  Some scholars disagree, arguing that a rights framework does not protect children as well as the best-interest-of-the-child standard.  A third solution might be to provide a right to counsel for unaccompanied minors. Children generally have no rights because of their legal incapacity to make informed decisions.   While the Executive Office for Immigration Review has made efforts to recruit pro bono legal aid for unaccompanied minors, they do not allow organizations to conduct presentations on a child’s legal status (in their native language), they restrict access to detention centers, phone calls to attorneys, house children in facilities which are too far from near legal services or may transfer a child to another center without legal notice to their attorneys or agents.  None of this is in a child’s best interest and there needs to be substantial legislative reform that makes it a due process violation for children to not be afforded right to adequate counsel. While there have been acts in recent years which serve as a starting point for unaccompanied minors, legislative reform should encourage not only child protection, but also some sort of more suitable foster care rather than life in a detention facility. 
     The best interest of the child standard should be afforded to refugees who come from all over the world fleeing violent persecution and have no other place where their legal identities may be established and respected.  Although immigration reform may be controversial, the rising surge of unaccompanied minors can no longer be ignored.  Recognizing and respecting the best interests of refugee children and helping them heal from trauma may afford them a better future. 


The Perfect Little Family

This guest post is from Regent Law 2L Matthew Davis and current Family Law student:

     The Bauchams were told they had “the perfect little family.” But God had other plans — that eventually involved seven more children through adoption. Today the Bauchams are approaching fifty, and their youngest is two years old. This is how their adoption journey began, and what God has been teaching them through it.

     Voddie Baucham, was raised by a single teenage mother and by all accounts had the stereotypical impoverished, struggling, troubled upbringing that many say can and should be avoided by terminating unplanned pregnancies in certain circumstances. In fact, there is a large and growing voice in America today that claims that the poverty, pain, struggle and difficulties of being a single teen mother raising an unplanned baby should be remedied by aborting that unplanned pregnancy, somehow a more humane option.  Voddie Baucham says that those who promulgate those ideas actually regard lives like his, and his adopted children, as unimportant and unworthy of even existing. Voddie’s mom struggled, but never gave up. At age 49 she finally graduated from college, and  Voddie remembers contemplating all she had been through, all she worked for, all she sacrificed and gave up for him to live and have life.  But he will be forever grateful that his mother put her life on hold to care for him and give him a chance, even if it had seasons of difficulties.

     Voddie took these life lessons with him as he grew up and determined to make his life count for something.  He went to college, got married, and eventually became the pastor of Grace Family Baptist Church in Houston, Texas. After having two children early in their marriage, Voddie and his wife soon realized that what looked like the ‘perfect little family’ was actually only a partial family.  Although physically unable to have any more children, they began to discuss their desire to enlarge their family by considering adoption.  Soon the couple found an adoption agency and encountered what many involved in adoptions already knew - that African American families interested in adopting were few and far between.  The Baucham’s saw this as a confirmation from God and immediately began the arduous task of filling out the adoption paperwork. In a mere two months they were matched with a child in need.

Voddie and Bridget Baucham
     The Bauchams first adoption is one that they will never forget.  It was the adoption of an unwanted child from a drug-addicted victim of rape.  Soon after the terrifying and traumatic experience, the pregnant teen mom felt completely helpless and had no idea what to do or where to go.  She eventually found herself at a local Planned Parenthood clinic thinking her only option was to end her pregnancy.  After sitting in that Planned Parenthood waiting room for what seemed like an eternity, she began to seriously think about the life inside of her and how that little precious life had done nothing wrong.  Although scared, addicted, and a victim the pregnant woman believed that the life inside of her deserved a chance. She quietly contemplated in that Planned Parenthood waiting room that somewhere someone would love this baby, and she got up and left the clinic.
She soon found a crisis pregnancy center that helped care for her needs and connected her with an adoption agency who connected with the Bauchams. Courageously giving birth and making an adoption plan for her child, the woman placed her child with agency and the Bauchams adopted the newborn, giving that child a good chance at life.  They also had a chance to pray with this courageous woman and continue to minister to her through her deepest, darkest pains.  The impact of that first adoption soon led to six more.

     The Bauchams describe how these adoptions have radically changed the way they understand their faith and relationship with God the Father. Until he was able to look into the eyes of his adopted children and love them the very same way that he loves and cares for his biological children, Voddie explains that he was never able to fully understand and grasp what it means to be a child of God.  Because we are God’s children by adoption, Voddie explains, “when you understand adoption, you get that, that we are his children, and he [God] is not going anywhere….“Adoption is about the gospel, I mean what else are we going to do with our lives that would be more important than what we are doing right now… I can’t think of anything.”

Read more about Voddie Baucham’s Story here


Practice-Ready Regent Law Training

This guest post is by Regent Law 3L, Michael Castillon, current Clinic student:

This fall I have had the privilege of participating in the Civil Litigation Clinic at Regent University School of Law.  Throughout the semester, I was given several responsibilities, ranging from conducting client interviews, to representing clients in court and administrative hearings. 

While working in the clinic, I was given the unique opportunity to represent a client in an unemployment compensation case, which spanned the length of three full hours.  During the hearing, I was tasked with cross examining five witnesses as well as conducting a closing argument.  We worked to help a client provide and care for his family.  The practical experience gained from working in the clinic is unmatched, and it is something that I strongly recommend to anyone who is interested in legal aid work and litigation.

Mr. Castillon gained the kind of experiential training in this course that many law students never receive, and some attorneys do not get in years of practice.  Practice-ready training makes a difference for law students and in families for whom those students advocate.


Consistency is Key


     Last week in Family Law we covered the case of Adoption of Baby Girl, the 2013 South Carolina case that pitted the tribal rights of Native Americans to restore their families against adoptive parents.  In an opinion returning the 4 year old back to the adoptive parents after living for 2 years with her father on his tribe's reservation, Justice Sonya Sotomayor dissented to that ruling with a thorough analysis of why children need to be connected to their natural parents. 
     This summer in Obergefell v. Hodges, however, Justice Sotomayor found with the majority that natural parents of a child are not as important as she so eloquently stated in 2013, but that rights of individual parents seem to trump a child's best interests in having a relationship with her biological parents.  This week, Professor Adam MacLeod discussed this at Public Discourse. Prof. MacLeod recently published an article on Obergefell v. Hodges with the Regent University Law Review and has recorded a Video Law Review on that piece.
     Justice Sotomayor understands the importance of the best interests of the child in one context, but not necessarily in the context of marriage expansion.  There she seems to prefer what’s best for adults’ individual choices in marriage, and the kids will be better for that.  Children thrive when they are raised by their mom and dad. This concrete foundation for children restores families.  Will the real Justice Sotomayor please stand up?