Protecting Migrant Children
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Protecting Migrant Children

In Search of Best Practice

Edited by Mary Crock and Lenni B. Benson

Unprecedented numbers of children are crossing international borders seeking safety. Framed around compelling case studies explaining why children are on the move in Africa, the Americas, Asia, Europe, the Middle East and Oceania, this book explores the jurisprudence and processes used by nations to adjudicate children’s protection claims. The book includes contributions from leading scholars in immigration, refugee law, children’s rights and human trafficking which critically examine the strengths and weaknesses of international and domestic laws with the aim of identifying best practice for migrant children.
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Chapter 17: Procedure deficits in protection for immigrant children in the United States

Lenni B. Benson and Claire R. Thomas

Abstract

In theory, United States immigration statutes offer many forms of protection and integration to foreign national youth. In practice, however, the ability of young people to access relevant special visa categories is frustrated by process barriers and the lack of adequate information and skilled counsel. Under US law, migrant children may seek protection as refugees; they may qualify for permanent residence if they have been abandoned, abused or neglected by a parent; they may be protected if victims of crimes or trafficking. In this chapter, we explore whether US domestic legal systems protect children’s procedural rights. We note at the outset that the US Constitution has been applied consistently to protect both citizen and foreign-born children with regard to fundamental rights such as education, safety and criminal punishment. Between October 2010 and October 2016, the US government initiated 177,561 removal or deportation cases against children. Of these, 41 per cent or 73,013 cases remained pending in mid-2017. This suggests that children are given time and process in removal proceedings. In this chapter we examine some of the reasons why ‘due process’ does indeed require time, as we explore measures that would greatly reduce the procedural protections that have been available.

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