Maryland immigrant rape case shows US failure to track alien youth

On March 16, 2017, two young men from Central America allegedly pushed a 14-year-old girl into a boy’s bathroom at a high school in Montgomery County, Md., and then raped her in one of the stalls.  Some claim that Maryland’s sanctuary policies led to this brutal crime.  

Maryland’s policies towards illegal immigration have made the state a popular destination for undocumented immigrants.  It has been estimated that 250,000 undocumented immigrants lived in Maryland in 2014.  But Maryland is not a sanctuary state … yet.

{mosads}When President Donald Trump issued an Executive Order declaring that sanctuary jurisdictions will lose federal funds, the County Council for Montgomery County responded with a statement assuring county residents that “County police do not enforce federal immigration law.”  The Council also noted that, “executive orders are subject to public scrutiny and legal challenges.” 

And only four days after the young girl allegedly was raped by undocumented immigrants, the Maryland House of Delegates passed House Bill 1362 “to restore community trust in Maryland Law Enforcement by clarifying the parameters of local participation in federal immigration enforcement efforts.”

According to Maryland Governor Larry Hogan, this is “an outrageously irresponsible bill that will make Maryland a sanctuary state and endanger our citizens.”  He intends to veto it the moment it reaches his desk.  

The alleged rapists were arrested the year before by U.S. Customs and Border Protect (CBP) for entering the United States illegally.  Instead of detaining them pending removal proceedings, CBP transferred them to the Office for Refugee Resettlement (ORR) at the Department of Health and Human Services because they were unaccompanied alien children.  ORR released them to relatives in Maryland to wait for their hearings to be scheduled, and they were enrolled as students at the school where the rape occurred.

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CBP is required by the William Wilberforce Trafficking Victims Protection Reauthorization Act to transfer the custody of unaccompanied alien children from Central America to ORR within 72 hours of determining that they are unaccompanied alien children.  ORR promptly places them in the least restrictive setting that is in their best interests while they wait for an immigration hearing to be scheduled.

They normally are not held at a secure facility unless they are charged with criminal actions, pose a threat of violence, or are flight risks.

Unaccompanied alien children are not eligible for many forms of relief.  Asylum is the most common.  The only other possibilities I am aware of are “special immigrant juvenile status,” which requires a finding by a state juvenile court that they have been abused, neglected, or abandoned; and “T nonimmigrant status” for victims of trafficking.

Many of the children who are released from custody abscond instead of returning for their hearings.  Between July 18, 2014, and June 28, 2016, removal proceedings were initiated in 69,540 cases. Only 31,091 of them were completed.  Of the total completed cases, 12,977 resulted in removal orders, and 11,528 (89 percent) of the removal orders were issued in absentia because the children had absconded.

The post-Trump immigration court handles fewer unaccompanied alien children cases.  This will increase the amount of time unaccompanied alien children have to wait for hearings, which is likely to increase the number of children who abscond.

Also, they will have less incentive to return for their hearings.  In the more liberal Obama era, immigration judges granted asylum in up to 71 percent of their asylum cases.  This is not likely to continue in the post-Trump era.

The fact that many unaccompanied alien children abscond is disturbing.  We know very little about them.

In a previous article, I proposed moving unaccompanied alien children to a safe location in some other country where their asylum claims could be processed as refugee applications by the United Nations High Commissioner for Refugees (UNHCR).  The refugee screening process is much more thorough than the screening unaccompanied alien children currently are receiving.

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This also would discourage parents from sending their children on the long journey from Central America to the United States, which was described as follows by former Homeland Security Secretary Jeh C. Johnson in an open letter to the parents of children crossing the Southwest Border:  

“The criminal smuggling networks that you pay to deliver your child to the United States have no regard for his or her safety and well-being – to them, your child is a commodity to be exchanged for a payment.  In the hands of smugglers, many children are traumatized and psychologically abused by their journey, or worse, beaten, starved, sexually assaulted or sold into the sex trade; they are exposed to psychological abuse at the hands of criminals.”

In any case, something needs to be done.  The current system for handling unaccompanied alien children is not working.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

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