The border surge, a year later: Tens of thousands of immigrant children remain in limbo

This is the first in a series of articles, one year after the surge of unaccompanied undocumented minors who crossed across the U.S.-Mexico border, examining the effects it has had on communities, schools and children themselves.

More than a year since arriving in the United States, the time finally came for 16-year-old Saul Martinez Ortiz to learn whether he could call America his home — or, be ordered to return to his native El Salvador.

A tall, thin soft-spoken boy who’s made painstaking efforts to learn English, Saul is one of the tens of thousands of unaccompanied minors who in recent years have made the perilous 1,500-mile journey from Central America, handed off from smuggler to smuggler until they cross the Mexican border and become the responsibility of the United States.

Saul began his journey when he was only 14, and since arriving has been living in New York with his mother, Teresa, an undocumented immigrant who in 2007 fled an abusive partner. But Saul has no parent in El Salvador able or willing to care for him, should he be deported.

On this day, however, Saul stood before Suffolk County (NY) District Court Judge Deborah Poulos, who would decide whether he could call America his home.

But he wasn’t alone. Unlike most undocumented children who are wending their way through America’s court system, Saul had a lawyer.

In the year since President Obama declared the surge in unaccompanied children from Central American crossing into South Texas to be a "national emergency," tens of thousands of kids still are waiting for their cases to be resolved — and many are doing so without legal representation.

Of those Central American children who have crossed into the U.S. since the border surge began in 2012 and have lawyers, three-quarters have been granted permission to stay, according to Syracuse University's Transactional Records Access Clearinghouse. Of those without lawyers, 80 percent have been ordered deported, the TRAC report shows.

Of the 60,748 minors who arrived at the border in fiscal year 2014, only 40 percent have lawyers, while 60 percent do not. Slightly more than 43,000 cases still are unresolved, according to TRAC.

And for fiscal year 2015, two-thirds of the nearly 12,000 minors who've arrived at the border have no legal representation.

The number of unaccompanied minors from Central America who attempt to cross into the U.S. border is down dramatically from between 2013-2014, in large part because Mexico stepped up its effort to intercept and deport unaccompanied minors heading north from Central America.

But while the flood has eased and an attempt is made to fast-track many cases, America's court system has been overwhelmed by the sheer numbers, forcing many children to wait at least a year — often longer — for a decision on whether they can remain in the U.S. 

Immigration courts reportedly faced a backlog in April of nearly a half-million cases. And while funding for enforcement has skyrocketed, money to ease the stresses on a strained court system is lagging. 

What’s more, the factors driving the surge of minors from Central America are far more complicated than, say, those from China, whose one-child policy is a clearer reason on which to base the granting of political asylum.

"Most of those kids who arrived last year are still in the United States and are still working their way through the immigration court system," said Marc Rosenblum, the deputy director of the Migration Policy Institute (MPI) immigration policy program. "There’s still a real crisis in the United States… in our immigration court system, because the courts are completely overwhelmed and have a real problem processing these kids and determining who’s eligible for asylum or some other visa that would allow them to stay in the United States."

Spending to care for the unaccompanied minors cuts across various federal government agencies, as well local and state ones. The U.S. Department of Health and Human Services had the biggest budget targeting unaccompanied children, funded at $912 million for fiscal year 2014, and $948 million for fiscal year 2015.

The HHS program includes, among other things, shelter, medical care and placement of the minors. An additional $14 million in new funding was allocated for schools that saw a sharp increase in the immigrant student population.

The federal government's budget to cover legal costs relating to the children were $2 million in fiscal year 2014, and $4.8 million in fiscal year 2015.

Saul’s case ‘not unique’

Saul’s case was one of six involving unaccompanied minors from Central America that his pro-bono attorney, Ala Amoachi, and her partner have pending before Judge Poulos. Getting an approval in Family Court for guardianship by a U.S.-based parent, and being granted a special immigrant juvenile visa, is a key step that paves the way to permanent residency, or a so-called green card.

The visa stems from a 2008 federal law that allows for greater leniency for unaccompanied minors who come to the U.S. from countries other than Mexico and Canada. Many say they have made the treacherous journey from Central America to flee gang violence, gang pressure to join and searing poverty.

"Saul’s case is not unique," said Amoachi, who has handled hundreds of unaccompanied minor cases the past year, and has some 300 still pending. "The rate of abandonment in these countries is very high, and we see a lot of issues involving gang violence from El Salvador, Honduras and Guatemala.

"A lot of these children have been the victims of attempted forcible gang recruitment, a lot of the girls we speak to have been victims of sexual assault or rape or at least an intent to do so," she said.

In hearing Saul's case, Judge Poulos was satisfied that the 16-year-old's life would be in danger if he was returned to El Salvador, and that his father, who had abused his mother, had never had been in his son's life.

"It would be in his best interest to remain in the United States. Saul, congratulations," Poulos ruled, granting guardianship to his mother.

By contrast, Rosenblum said, the vast majority of kids show up without an attorney, lose their request to stay and are deported. Eighty percent of the kids who do have legal representation get "some sort of relief" from the courts, Rosenblum said.

"Thinking about what this country stands for and our belief in the rule of law, it’s kind of horrifying when you have these children in immigration court," he said. "It’s almost like a death sentence to be deported back to the conditions they’re fleeing from."

Critics have said the children should be returned to their respective countries instead of overwhelming an already taxed immigration system. And, they say, allowing the children to stay is only encouraging more illegal immigration.

"America, as a matter of policy, is telling parents that in Central America that if they turn their children over for these dangerous trip to the United States, that once they get here they will be able to stay," said Congressman Lee Zeldin (R-NY), whose Long Island district was one of the most affected by the border surge. "I have a tremendous amount of compassion for all of the children all around the world who are suffering from hunger and poverty. But we don’ have bandwidth as a nation to open up our doors for everyone to come here."

Saul no longer ‘suffering’

For his part, Saul broke out of his shyness after that momentous day in court and smiled broadly, speaking easily about his dreams for the future — dreams that include perhaps one day working as a computer programmer, and inventing some technological wonder that will make the world a better place.

"I won’t suffer anymore," said the Brentwood (NY) High School student, who said he was threatened several times by gangs in El Salvador — and given a join-or-die ultimatum.

"I won’t have to go back to my country," Saul said. "Over the past year I have been here, I have felt really super and I feel I have a good future."

His mother, Teresa, beamed and got teary.

Her daughters have gone through this, and eventually got their green cards. But she takes nothing for granted, she said, and hoped and prayed that Saul, who with her daughters saw a neighbor killed in cold blood by gang members, would get to stay as well.

"I believe this is the best country in the world," Teresa said.