The Canary in the Coal Mine
by Jennifer Podkul
August 23, 2021
This interview with Jennifer Podkul, Vice President for Policy and Advocacy at Kids in Need of Defense (KIND), was conducted and condensed by franknews,
Jennifer | In my role, I work on adjusting policies and advocating for policies to better protect children on the move. That includes children at every stage of their journey. What are the reasons they feel like they have to leave their home in the first place? What happens to them en route? And how can countries provide better reception for children and adjudicate their claims for protection in a fair way, and make sure that we'll never send any child back to danger? We are always considering the best interests of the child.
frank | In those first stages of movement, what do you advocate for? In terms of route to the US, and the root issues in home countries?
The ultimate goal is we want children to be able to stay in their homes. We want them to be safe. We never want children to feel like they have to flee or travel on their own in the first place. So how can countries like the United States assist and address root causes? We advocate for how U.S. foreign policy and foreign aid can be better fitted to make sure that we're addressing that. We are really focused on gender issues, supporting civil society, and strengthening child protection systems in those countries so that a child doesn’t feel like they have to leave because of violence in the home and that there is no one to protect them. That's the ultimate goal.
If a child feels like they need to leave, we believe it's their human right to be able to migrate and go to a place where they may have a support system. Once they are on route, how do we make sure they are safe? We are talking about, sometimes very, very young children traveling on their own — other times they will travel in groups of other children or with people from their community. So, what is it that governments of transit, for example, Mexico, do to make sure these children are safe? What can Mexico do to make sure the children passing through are safe, can ask for protection at the border, and will not be subject to detention? We really want to think holistically, rather than just thinking about the destination country. We want countries to have systems in place so that they can talk to a child and figure out who is in their country of origin, who is in the destination country, and which would be the best and safest place for this child?
And then we look at the receiving country, we look at what we are doing to ensure that children have the ability to ask for protection – and then make sure that that system is safe. A lot of what we do is ensure children have an attorney to help them through the court process.
If these children want to ask for protection, the burden is on them to prove that they need protection in the United States. So we are also advocating to make sure that the system by which we adjudicate the kids' cases is fair.
So there's no guarantee for an attorney for an underage child?
In the United States, any immigrant is welcome to bring a lawyer with them to court, but the government does not give immigrants lawyers.
So even if you are a three-year-old who was here without a parent or a legal guardian, you technically have to find yourself a lawyer.
Which is so crazy. Now there's some funding from the government that helps support organizations like KIND, but that only covers some of the funding groups like KIND need, and as a result, we are not able to represent every child in need of an attorney. Right now, over half of the kids in deportation proceedings still don't have representation.
How do you get connected with the kids?
When children are first encountered at the border, they're held in government custody until they can be reunified with a sponsor. We work in some of those shelters, and often that is how we get connected to a child.
Sometimes we are on a list that the adult relatives and sponsors of the child get, which basically tells the sponsor that these are the groups that will help you get a lawyer. But again, we can do that for some cases, but not all. We might not have the capacity, so it's not a guarantee. Some families can afford a private attorney, a very small number, but the burden is on the kid and the sponsor to figure it out.
What guarantees are there for children at the border? I know the Flores settlement is the main protection, but that pertains only to conditions at the shelters correct?
The legal framework is mostly found in a 2008 trafficking law. The law creates a framework on how kids' cases would proceed. The idea is that a child has a right to ask for protection and they have a right to have the opportunity to talk to a judge. Whereas adults can be subject to expedited removal, where if they don't make the right claim for asylum, a border agent could just turn the adult around and send them back, unaccompanied children should immediately be referred to the shelter system and given an opportunity to talk to a judge before they're ordered deported. This allows a trained official to screen the kid and ensure that they are safe, that they're not being trafficked, and that they wouldn't be returned to persecution.
Once the child goes to one of the shelters run by the Department of Health and Human Services Office of Refugee Resettlement, the protections kick in. A social worker will screen them. An attorney will screen them.
So there are procedural protections for kids, but it is the same standard of proof that is required by adults. The protections for kids are focused on procedure, and other than that, they are really treated like little adults in our immigration system.
One more logistical question. When the children provide a list of relatives in the shelter for reunification, where do those names come from?
Oftentimes the kids will come with a name or a phone number. Or when the child is in the shelter, they will meet with a caseworker. The caseworker will ask if their mom is in the country of origin, and if so, they will try to get mom on the phone. The mom might say, “My sister lives in Virginia. Here's her phone number. She may be able to be willing to take care of the child.”
And the idea of connecting them with a known adult is that it gets them out of the shelters and into a home, which is good. But, it's also at the expense of the sponsors. The government is not paying for their care or anything like that. And it is a really long process to get through the court system, often up to several years so it is important they are in a safe, healthy environment during that time.
Migration on a large scale is always weaponized in politics, but kids specifically seem to be the center of campaigns. What actually changes between administrations?
Yeah. It's interesting because kids are more visible than other migrants. I think that goes to your point that they are often a lightning rod. You cannot just send a five-year-old who comes to the border and asks for protection to a bus station and say good luck and here is the date of your court hearing. They have to hold the kids until a safe adult can be found, and times when there are greater numbers, there are backups. It's very visible because the government has a duty to provide care and custody until they can unify them.
And often, if you look at the migration trends, especially starting in 2014, the first large numbers of kids are the canary in the coal mine. First vulnerable children come, and then the families follow. It has really been an indication of migration trends and problems in the country of origin.
A lot of people say to us, “Your job should be really easy. Everybody cares about kids. Doesn't everybody want to help?” Well, I agree. It should be really easy, but because the border and the immigration system have become so politicized, people aren't always as sympathetic.
Yeah. Or it gets kind of twisted. The Republican rhetoric is that safety measures for children encourage coyotes and human trafficking. How valid is that argument?
Well, I would say, talk to a kid about why they left.
The child didn’t leave because they heard about the Flores settlement that means that they get sandwiches and a worksheet at the shelter.
They left because people were leaving body parts at their door. Not because they heard of some complex legal system that gives them the opportunity to go outside for an hour a day. If you are worried about the child with a smuggler, but you're not worried about the kid dying in their country of origin, that doesn't seem very authentic to me.
I think that sort of rhetoric stems from a refusal to take a look at the root causes of migration, which requires long-term investment and serious thinking about long-term issues.
What policy changes would you push for this administration to make?
The previous administration closed the border to everybody, including the children. So we saw thousands of kids waiting in Northern Mexico to be able to ask for protection. The Biden administration decided to allow children to seek protection, which is part of why we've seen large numbers at the border. There had been an artificial buildup over the past year. I think that was the harder choice. We have been struggling with the numbers, but I think it was absolutely the right thing to do, morally, and ethically.
What needs to happen now, though, is that there needs to be a more efficient and fair way of adjudicating these cases. Right now children are languishing in detention in these custody settings because they don't have enough case managers. The unifications need to be sped up so that the kids can get out of government custody and into homes. Additionally, they cannot make a kid wait four or five years for the decision on the case. That is not fair. These kids need resolution about where they are going to have to live. Making sure that we have dedicated judges and adjudicators for kids’ cases, who know how to interview kids, who know how to listen to a kid's story, and who can do it in an efficient way, is going to make the process better for everyone.
How do those changes happen, legislatively?
ORR already has a system in which they have funding to support counsel. However, you need an infusion of more funding for counsel, which currently could be done with the reconciliation process or through the regular appropriations process. ORR can always spend more money on attorneys than what they get. They only dedicate a tiny amount of their overall budget towards that. This will save the government money in the long run because the court cases will move along more efficiently.
In terms of creating these specialized dockets and adjudicators and having appropriate training for them, that could just be done by this Administration. That does not require an executive order. That's just the administrative management of the executive branches that deal with adjudications of kids' cases. That could be done tomorrow. They could just reorganize and move cases onto a separate docket. That is a relatively light lift that could have a lot of return, both for government efficiency as well as for migrants.
Why isn’t that happening?
I think the very high numbers of migrants have been very distracting for everybody. It's really just all hands on deck. How do we receive them? How do we make sure that you keep them in a safe place? How do we get them reunified? I think there is absolutely a conversation, especially on the part of advocacy groups, about how to make the courts more efficient for kids' cases. They have done some tinkering already, which is encouraging to see. But I think keeping the pressure on them about larger changes is really important.
Is there anything else that you feel is important to add when we're looking at policy or advocacy in this arena?
Obviously, children have unique concerns and vulnerabilities. I also think that these considerations should be the start of the conversations for other vulnerable populations as well. Right now, we're seeing terrible things happen to parents who are asking for asylum or to families who are asking for protection. How do we think about the commitments we're making to unaccompanied kids and how can that bring along and ensure protections for other equally vulnerable populations?