A THOUSAND WORDS FOR CHILDREN AT OUR BORDERS Student Contest * A LEGAL PERSPECTIVE ON NON ACOMPANIED CHILD MIGRANTS IN MEXICO

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1 A THOUSAND WORDS FOR CHILDREN AT OUR BORDERS Student Contest * A LEGAL PERSPECTIVE ON NON ACOMPANIED CHILD MIGRANTS IN MEXICO Roxana Rosas Fregoso (Doctor of Laws Candidate, UNAM) Migration has become one of the most relevant social phenomena in the XXI century. i The social and political debates around this issue have set forth new questions about which are and how must we understand the scope of specific human rights of migrants that States are obliged to comply. ii Consequently, Mexico has recently experienced an urgent need to analyze the legal structures that shape the migratory flows that converge within our country. Amongst the multiple aspects that outline the general discussion on this matter, the legal framework around non-accompanied child migrants is one of the most relevant topics. Although the range of factors that might explain why children migrate is quite wide, and even if most of them travel with their parents or guardians iii, it is possible to observe an increasing tendency of children traveling by themselves. iv This trend has detonated several reactions in the Mexican legal system. Moreover, it has staggered the interpretations that the law has traditionally offered to the most relevant legal institutions in our country s legal heritage. For instance, this phenomenon has forced our legal institutions to reinterpret its concept of family, since minors establish, during their journey, an affective bond with individuals who are not part of their family or even with non-akin families that become close to them because of their common traveling. v In that same line of thought, the concept of non-accompanied child migrants has forced the State to re-evaluate their responsibilities towards children in this situation. vi Therefore, the purpose of this essay is to analyze, as a first step, the main regulation affecting non-accompanied child migrants. Using such analysis as a baseline, I identified the two necessary minimum protections that the authorities should put into effect for the safeguard of this population, namely: 1) Enable the corresponding principles, international standards and national law through the enactment of a set of procedural rules that can translate the law into governmental action, and 2) the enactment of special legislation that acknowledges the needs and challenges of non-accompanied child migrants. * The ideas put forward in this essay are the sole responsibility of its author and do not reflect the opinion of the Mexican Law Student Association (MxLSA), nor any of its individual members. This essay is the winner of a student contest named A Thousand Words for Children in Our Borders, organized by MxLSA. Harvard University did not get involve in the selection of the winners, nor in the editing process.

2 1. International Law At the international level, the United Nations Committee on the Rights of the Child has defined the unaccompanied child as one who is separated from both parents and other relatives and is not under the care of the adult who, by law or custom, has that responsibility. vii This figure stands in contrast to the different legal situation of a separated child, who is one separated from his parents or guardians, but not necessarily from other relatives. viii That is, the separated child may be accompanied by other adult members of his or her family. The United Nations Convention on the Rights of the Child, along with other international instruments, welcomed the so-called doctrine of the comprehensive protection of children. ix This doctrine acknowledges children as individuals with the capacity to exercise their own rights, and grants them a main role in the construction of their own destiny. x Thus, the child is treated as a self-entitled individual with autonomous legal personality. xi Moreover, this doctrine is also responsible for the emergence of children's rights as a whole new legal branch, based on three fundamental pillars: minor s best interest, the minor as a subject of law, and the link to parental authority. xii In addition, it strives to guarantee the duties and obligations that the family, the State and the community have with regard to minors -with the participation of these three sectors-, seeking at all times the protection of their human rights as a comprehensive pillar, starting with the recognition of their autonomous legal personality. xiii Specifically, regarding child migration, article 19 of the Convention on the Rights of the Child states that border authorities should not prevent the entry of foreign children into the national territory, not even of non-accompanied minors. Said article also mentions that border authorities should not require minors to show documentation that they cannot be expected to possess. xiv The convention also indicates that the authorities should immediately direct children to staff who can assess their protection needs, from an approach in which their status as children prevails. xv Therefore, States are obliged to allow the child to enter into their territory; granting access constitutes a mere precondition to carry out a procedure that starts by contacting the minor with its national consular office. xvi The age verification is a transversal issue. The determination of age requires the State to grant special treatment to minors: priority, differential and exclusive actions regarding said condition. xvii What this means is that the authorities that encounter migrant minors must prioritize the determination of their age above any other action, to provide them with adequate and appropriate protection in compliance with applicable legal instruments. In addition, the Office of the United Nations High Commissioner for Refugees has pointed out that, in assessing the protection needs of migrant children, it is necessary to recall that "both girls and boys face many of the same risks for which they require protection, however, they may also be exposed to gender specific menaces". xviii According to the High Commissioner, it is necessary to identify the specific risks that young girls face due to their gender, their cultural and socio-economic position or their legal status. xix

3 2. National Law Generally, Mexican institutions have been receptive to international guidelines on migrant minors. The following are some of the actions that each branch of the federal government has taken on this matter. First, the Mexican Supreme Court of Justice has argued that the child s best interest principle (1) arises when interpreting any rule that may affect the interests of minors and (2) entails the authorities obligation to ensure that any child can effectively exercise his or her rights over and above any circumstance or formality. xx Second, in 2011, the legislative branch enacted the Migration Law. This instrument, in my opinion, represents one of the strongest steps of the Mexican State towards migrant s protection. This law got rid of old atavisms included in the General Population Law, which placed migrant children in a legal abyss instead of protecting them. The law was practically silent about child protections and the only reference to migrant children referred to situations in which they could be identified as victims of human trafficking. However, it should be noted that the legal status of unaccompanied migrant children is not perfectly disaggregated in the Migration Law. Only article 3, section XVII, and article 112 reference minors in a situation of migration, which is clearly insufficient to deal with the complex reality of unaccompanied migrant minors. xxi Third, in 2012, the Executive Branch published legal regulations through which the Federal Public Administration develops a set of procedural rules to follow in all cases in which the authorities identify unaccompanied minors such as the determination of their migratory status, the possibility of obtaining international protection or humanitarian aid, among other legal situations that must be determined to comply with the child s best interest principle. xxii In addition, the Federal Public Administration issued the Protocol of Care for Sheltered Unaccompanied or Separated Children and Adolescents. This protocol has been implemented by the Family Integral Development Agency (DIF) and civil society organizations. Also, the Federal Public Administration enacted an additional protocol to ensure compliance of legal principles and strict observation of adolescent and children s rights during migratory administrative procedures. xxiii In that same line of thought, the National Commission on Human Rights of Mexico (CNDH) has placed special emphasis on identifying the age and gender of migrant children in cases such as Recommendation 22/2015. xxiv On March 10, 2014, the Commission realized that a migrant girl of Ecuadorian origin was found dead in a bathroom of the shelter which the Chihuahua local DIF had assigned her to. xxv The case involved an unaccompanied migrant girl. The CNDH interpreted that the girl was in a multiple vulnerability" situation not only because of her sex and age, but because she was a "person in a situation of migration and legally without the company of an adult. xxvi The CNDH also recognized that the problem of unaccompanied migrant children should not be limited to the possible detention and return of migrants to their country of origin. xxvii For the Commission, these actions have a placebo effect on the structural causes of migration; which are those that the State should be focusing on. xxviii In this regard, the

4 Commission concluded that there were no specific protocols nor training aimed at strengthening prevention and protection of minors living in shelters. xxix For the CNDH, the girl s case evidenced the weak coordination between the Federation and States and the multiple flaws in the chain of protection of migrant children. The CNDH recommendation rightly identifies the fundamental problem of the juvenile migration law regime: the non-application of both international and domestic principles and legislation. 3. The lack of effectiveness in formal law The United Nations has already identified the ineffectiveness of formal law as a root problem. According to this international organization, the Protection Act of 2000 was a significant improvement, however, at the very moment of its issuance, a lack of mechanisms to ensure the effectiveness of its provisions could be anticipated, moreover, inadequate coordination between governmental sectors in charge of guaranteeing children s rights was also expected." xxx Likewise, the Committee on the Rights of the Child stated that the State s federal structure complicates the application of laws regarding migrant minors. According to the Committee, it is necessary not only to harmonize federal and state laws with relevant international standards, but also to adopt the administrative procedures that can be used as guidelines during the implementation of all these regulations. xxxi This implies that the adoption of laws aimed to protect migrant children is sterile without the construction of an administrative apparatus that allows its proper application. 4. Opinion In order to tackle the ineffectiveness of formal law, I believe it is necessary to address the phenomenon of unaccompanied migrant minors from two closely related dimensions. On the one hand, the rules must be specific and emphatic about what it means to recognize unaccompanied migrant children as a vulnerable group and which are the legal consequences of doing so. Given the particular circumstances faced by this sector of the migrant population, minors are deserving of an objective distinction in the treatment provided by the authorities. In this regard, the Convention on the Rights of the Child emphasizes that children have the rights that correspond to all human beings, but also have special rights derived from their status as minors, which entails specific duties for their families, the society and for the State. xxxii This becomes relevant when analyzing the right to a due process, or the deportation and repatriation procedures which happen in administrative settings. In this regard, the Inter- American Court of Human Rights has sustained that, in order to achieve the objectives of justice, every process -even those of an administrative nature- must recognize and resolve the real inequality factors that affect the lives of those who brought the issue before them. xxxiii

5 On the other hand, it is necessary to develop procedural rules that enable the implementation of laws. This is what I have identified as a second dimension. Although, at first glance, it might seem contradictory to recommend the enactment of additional regulation as a solution for the ineffectiveness existing laws, it is necessary to emphasize that, as detailed in previous paragraphs, the non-application of national and international legal precepts is, at least to some extent, the result of the absence of articulated public policies through which the letter of the law could come to life. Given such legal limbo, the creation of specialized protocols can be a very powerful tool. In addition, it is necessary to translate this phenomenon into a focused legal strategy that builds upon the content of the rights of this vulnerable population and, thus, facilitate the concrete application of existing norms or special rules aimed to ensure compliance with the relevant international standards. i THE STATE OF THE WORLD'S REFUGEES, FIFTY YEARS OF HUMANITARIAN ACTION (ONU/Oxford University Press, 2000), 9. ii On the concept, characteristics and foundation of the term human rights see, among others: G. Bidart Campos, TEORIA GENERAL DE LOS DERECHOS HUMANOS (UNAM, 1989); M. Beuchot, DERECHOS HUMANOS, HISTORIA Y FILOSOFIA (Fontamara, 2001). iii See, U.N. Human Rights Council, UN Doc. A / HRC / 11/7, Report of the Special Rapporteur on the human rights of migrants, Promotion and Protection of All Human, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development (14 May 2009), para. 19. iv Id. v See N. Gonzalez, FAMILY MODELS BEFORE THE NEW LEGAL ORDER, A CASUISTIC APPROACH (UNAM,, 2012), 86. vi In this sense, new juridical theories have been given genesis as the doctrine of child s comprehensive protection, which supports the claim that children have autonomous legal personality. See further, Inter-American Court of Human Rights, OC-17/2002, Advisory Opinion No.17, Legal status and Human Rights of Children (August 28, 2002). vii Committee on the Rights of the Child, UN Doc. CRC / GC / 2005/6, General Comment No. 6: Treatment of unaccompanied and separated children outside their country of origin (September 1, 2005), para. 7 viii Ibid., para. 8. ix Gonzalez, op. cit. supra note v. x UN Doc. CRC / GC / 2005/6, supra note vii, para.20. xi F. Dekewer-Defossez, LES DROITS DE L ENFANT (Presses Universitaires de France, 2001), 4-6 and 61; and J. P. Rosenczveig, The Self-Executing Character of the Children's Rights Convention in France, in E. Verhellen, MONITORING CHILDREN'S RIGHTS (Univ. Ghent/Nijhoff, 1996), 195. xii González, op. cit. supra note v, at xiii Inter-American Court of Human Rights [hereinafter ICHR], OC-21/14, Advisory Opinion No. 21, Rights and Guarantees of Children in the Context of Migration and / or Need for International Protection (August 19, 2014). xiv UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations [UN], Treaty Series, vol. 1577, p. 3, available at: [accessed March 17th, 2017]. xv Dekewer-Defossez, op. cit. supra note xi. xvi UN Doc. CRC / GC / 2005/6, supra note vii, para.20. xvii Ibid., para. 31. xviii United Nations High Commissioner for Refugees [hereinafter, UNHCR], UN Doc. 107 (LVIII) -2007, Conclusion on children at risk (October 5, 2007), 7. xix UNHCR, UN Doc HCR / GIP / 02/01, Guidelines on International Protection: Gender-related persecution in the context of Article 1 (2) of the 1951 Convention relating to the Status of Refugees and/or its 1967 Protocol (May 7, 2002). Also, see HANDBOOK FOR THE PROTECTION OF WOMEN AND GIRLS (UNCHR, 2008). xx Supreme Court of Justice of the Nation [SCJN], Decima Epoca, Semanario Judicial de la Federacion y su Gaceta, Libro 4, Volumen I, Marzo 2014, Tesis 1ª. / J. 18/2014 (10th), p. 406 (Mx.). xxi Ley de Migracion, Diario Oficial de la Federacion [DOF] , ultimas reformas DOF (Mx.).

6 xxii Reglamento de la Ley de Migracion, DOF , ultimas reformas DOF (Mex.). xxiii PROTOCOLO DE ACTUACION PARA QUIENES IMPARTEN JUSTICIA EN CASOS QUE AFECTAN A NIÑAS, NIÑOS Y ADOLESCENTES (SCJN, 2012). xxiv See CNDH, Recomendacion 22/2015 sobre el caso de la muerte de la nina v1, persona en migracion no acompanada de nacionalidad ecuatoriana, ocurrida en el albergue a1, en Ciudad Juarez, Chihuahua, July 27, 2015 (Mx.). xxv Id. xxvi Id. xxvii Ibid. para. 45. xxviii Id. xxix Ibid. para. 85. xxx A. Morlachetti, National systems of comprehensive protection of children: legal bases and state of implementation in Latin America and the Caribbean (CEPAL-UNICEF, 2013), 31. xxxi Organization of the United Nations (UN), Committee on the Rights of the Child 2006, Mexico. Par. 7. xxxii Human Rights Committee, UN Doc 07/04/1989, CCPR / C / 35, General Comment 17, Rights of Child (Art. 24), pp xxxiii ICHR. Advisory Opinion No.16, The Right to Information on Consular Assistance within the Framework of the Guarantees of Due Process of Law, OC-16, para. 119.