Human Rights for Immigrant Children and the NY State DREAM Act
When two fisherman rescued a minor off the coast of Florida in 1999, it’s unlikely they could have anticipated the resulting tidal wave of controversy that met the boy upon entering the nation’s borders. The boy was alone, as his mother drowned at sea. Unaccompanied, he was placed in the care of his uncle in Miami, Florida. Yet his father—still living in Cuban—petitioned for the boy’s safe return to Cuba. The Cuban community launched a grassroots movement and protested in the streets, petitioning for asylum on behalf of the young Cuban boy. The controversy sparked a media frenzy that dominated the newswires for months. While Elian Gonzalez was once a household name, his story is far from unique. Children come unaccompanied to the United States for various reasons: fleeing from violence or natural disasters, following family that relocated to the United States, or simply pursuing economic opportunities to support their families back home. Chad C. Haddal, Unaccompanied Alien Children: Policies and Issues (Mar. 1, 2007).
In 2006, the Department of Homeland Security (DHS)’s Customs and Border Protection apprehended 101,952 unaccompanied children (aliens under the age of 18 who either came to the United States without authorization or overstayed their visa, and are without a parent or legal guardian). According to the Office of Refugee Resettlement, the average age of these children in 2004 was only 15 years old, with 79% of the children between the ages of 15–18 and 20% under the age of 14. Jacqueline Bhabha and Suan Schmidt, Seeking Asylum Alone: Unaccompanied and Separated Children and Refugee Protection in the U.S., The John D. and Catherine T. MacArthur Foundation, June 2006.
Upon detention, these children are subject to removal proceedings, and the U.S. court system holds them to the same evidentiary standards and proceedings as adults. Removal proceedings are not criminal, but rather civil, thus alien children are not provided with public counsel. Chad C. Haddal, Unaccompanied Alien Children: Policies and Issues (Mar. 1, 2007). As a result, juveniles frequently appear at removal proceedings without legal representation and often are unable to comprehend the proceedings.
In March 2011, the Cornell Law School Briggs International Law Society hosted a lecture with immigration attorney, Aryah Somers. Ms. Somers discusses immigrant children in deportation proceedings.
The migration of children between national borders presents extraordinary challenges for children’s rights advocates, governments, nongovernmental organizations, and, most importantly, the children themselves. When children cross the border into the United States, they engage with a complex web of different realities of children’s rights, state laws, and federal laws that protect or punish them, and state and federal systems that are sensitive to them or expel them.
Our federal laws have increasingly recognized the human rights of unaccompanied immigrant children—meaning children without a parent or legal guardian—by creating systems of long-term protection that reflect the core principle of the Convention on the Rights of the Child: the best interest of the child. See Constructions of Childhood and Unaccompanied Children in the Immigration System in the United States, UC Davis Journal of Juvenile Law & Policy, Summer 2010, 14 UC Davis J. Juv. L. & Pol’y 311. Meanwhile, state laws, such as those in Alabama and Arizona, have increasingly stripped away even the most basic human rights of immigrant children. Today, more than ever, immigrant children and their allies are struggling to protect the existing human rights, while also working towards the creation of humanitarian laws that provide long-term protection.
In New York, there is now an opportunity for everyone to be part of a positive state movement for the human rights of immigrant children, similar to what we have seen in California. It is the New York State Dream Act (S. 4179). This humanitarian protection will provide access to financial aid for higher education, driver’s licenses, work authorization, and health care for children and persons who arrive to the United States before the age of 16 and are under the age of 35, have resided in New York State for at least two years, have obtained a high school diploma or General Education Development (GED) equivalent from an American institution, and have “good moral character.” It is time to connect with this important human rights movement by contacting the New York State Youth Leadership Council or Senator Bill Perkins to find out how you can become involved.
I hate to be a critic, but I think this article conflates the idea of human rights, in which I would include things like food, shelter, and health care, and state-governed privileges, in which I would include financial aid, driver’s licenses, and the like.
Taking aside the issue of health care and work authorization provisions, the idea that undocumented (i.e. non-taxpaying) immigrants should be allowed access to state-controlled financial aid is a little puzzling. At least so far as I understand it, such programs operate with the presumption that (1) the beneficiary of such programs is the child or ward of a taxpaying adult who in part contributed to such a system, and (2) that the benefited child will later go on to benefit the state by providing taxable income. In the case of illegal immigrants, both contingencies are rarely, if at all, met. Thus, in a sense, providing this benefit to an undocumented worker isn’t really justified, and it ends up harming legitimate taxpayers by depleting resources from a pool they contribute to.
Similarly, I’m not exactly sure how a driver’s license is a human right. While America suffers from a horrible car-based infrastructure that pretty much necessitates cars (or buses), this does not necessarily mean that the ability to acquire a state-issued driver’s license is a human right or that the attempted provision of such is a humanitarian effort.
While I understand the justification for providing illegal immigrants access to basic healthcare and the ability to work, I think the DREAM Act dangerously toes the line of creating a form of constructive citizenship whereby illegal immigrants can benefit from and not contribute to the state system. If we really want to provide these children an opportunity, we should contemplate our entire immigration system, rather than trying to cast things like a loan as a “humanitarian protection.”