How A N.Y. Lawyer Is Getting Unaccompanied Minors Legal Status Using Controversial 2008 Law

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One family's immigration story - their lawyer

The Ortiz family's immigration lawyer has found a way to consistently win special visas for undocumented minors. But is it cheating the system?

This is the second of two parts. The first part detailed the journey of five children who fled violence and gang threats in El Salvador and are now settling into their new life in the U.S.

As the nation is immersed in a debate about whether to be tough or compassionate when handling the cases of tens of thousands of unaccompanied minors from Central America, a New York lawyer is working doggedly to keep them from being deported.

His main weapon is a 2008 law, virtually unknown to most Americans until now, that bestows a special immigration status upon children who lack at least one parent in their homeland or last place of residence who can care for them. Such children are deemed victims of “abuse, neglect, abandonment or a similar basis found under state law.”

Returning them to their country, the law holds, is counter to the child’s best interest.

Armed with the Trafficking Victims Protection Reauthorization Act, immigration attorney Bryan Johnson has been able to score Special Immigrant Juvenile visas for roughly 50 of the 50 youths for whom he has sought them, he said.

“If you have children in your country saying help me, that’s what you do,” Johnson said in an interview in his office in Long Island, “you help them.”

Johnson, who says he has some 150 Special Immigrant Juvenile visa petitions pending, said the controversial expansion of the law in 2008 arguably has helped children who are part of the influx on the border stay in the United States.

The measure allowed for more leniency regarding unaccompanied minors who come from countries other than Mexico and Canada.

“The law is purposely made broad so you can get a lot of people to be eligible,” Johnson said.

Previous versions of the measure were quite strict, requiring, for instance, that both parents be deceased before a child was considered eligible for protection.

Johnson estimates that half of the roughly 60,000 children who have come accompanied from Central America since October could obtain the special visa, which also paves the way to get legal permanent residency in the United States.

For kids whose relatives or guardians do not know about the measure, or how to go about applying for it, obtaining the visa is difficult, experts say.

Johnson also notes that since family court judges decide whether the 2008 law applies to a child, the local political climate can play a part in a case’s fate.

“It depends on where a child lives,” he said. “If they live in a deeply conservative county, and the judges are very political about what they should do, there’s going to be [a higher] denial rate in the family courts.”

Most of the youths Johnson represents do have someone to take care of them and have not been abandoned in the conventional understanding of the term. While their immigration cases are pending, many are released by U.S. authorities to a parent who came here before them, and then arranged for smugglers to bring them across the U.S.-Mexico border.

Johnson says he is not doing anything crafty or wrong by turning to the measure to get his clients residency.

“How do you exploit a law if you’re eligible for it?” he asked.

Many critics of the 2008 law say it was intended for, say, victims of traffickers who exploit kids for sex or labor – not for the situation that has unfolded on the border in recent years.

The critics want to tighten it back to its stricter version, and have all kids treated like those from Mexico and Canada. Kids from those two countries are screened within about 48 hours of their arrival to determine what danger, if any, they would face upon being returned to their homeland.

The 2008 act calls for children from countries other than Mexico and Canada to be transferred by the Border Patrol into the custody of the Office of Refugee Resettlement (ORR), an agency of the U.S. Department of Health and Human Services (HHS) that is responsible for processing and sheltering certain unaccompanied minors.

Most of the children are eventually placed with a relative or guardian pending the resolution of their case.

Dan Stein, president of Federation for American Immigration Reform, or FAIR, says there is wholesale gaming of the Special Immigrant Juvenile visa program.

"Obviously, a lot of lawyers are going to argue that anyone who ends up sitting on a lawn north of the border in Texas without a parent is presumptively abandoned," Stein said. "It's abusing the system. The 2008 law was meant to protect or give relief to children who were [for example] taken by traffickers without consent and wind up being brought to this country illegally. They're children whose parents cannot be identified, perhaps because they've been killed, and the children are orphaned or abandoned."

But these kids, Stein argues, often have a parent who can – and is willing to – care for them.

And, he said, many are willingly traveling with smugglers in order to get to the U.S.

"The fact that a child is judicially declared abandoned despite the fact that they're living with one parent is beyond ludicrous," he said. "Every minor cannot simply come to this country and demand to stay. The law needs to be changed by Congress – either now or during a lame duck session."

Johnson said it is morally wrong to return the kids to their countries, which are plagued by poverty and soaring gang violence.

Before 2012, three-quarters of unaccompanied minors came from Mexico, according to the Migration Policy Institute. In the last fiscal year, Mexican children arriving at the border alone had dropped to just 25 percent of all unaccompanied minors arrested by Border Patrol agents.

About 75 percent came from three nations: Hondurans (28 percent), Guatemala (24 percent) and El Salvador (21 percent).

Johnson says there’s no reason political leaders – and, specifically the Obama administration – should be scrambling to address the crisis at the border.

The fact that life in Central America had become intolerable and that children were fleeing in unprecedented numbers became clear to him last year, he said, when immigrant parents and their kids began arriving at his office in growing numbers.

“They [Obama administration] intentionally ignored this problem for over a year,” the lawyer said, adding that their neglect let the problem grow out of control, overwhelming the Border Patrol in Texas and the resources at its disposal.

Earlier this year, photos were leaked of children detained in overcrowded shelters, sleeping on floors. The kids told of extremely cold temperatures in the facilities where they were kept and of the little food they were given.

“It’s a political headache for him,” Johnson said, referring to Obama.

The administration is pursuing ways of processing and removing the children more expeditiously, something that advocates for immigrants fear will rob them of due process and make a fair and thorough determination of the ramifications of their deportation.

“What Obama wants to do is deport children back to harm,” he said.