Sandra* lost her address book somewhere between her home in Santa Barbara, Honduras, and the border town of Eagle Pass, Texas. So the 17-year-old girl sought out the police after crossing the Rio Grande in August 2005. Pregnant and broke, she thought they’d help her find her brother in Florida. Instead, they notified immigration authorities, who arrested her, assigned her an alien number, and served her a notice to appear in immigration court for deportation hearings.

Immigration then turned her over to the Office of Refugee Resettlement (ORR), which sent her to a shelter in Indiana – one of 30 across the country for undocumented minors who are in the United States without parents or guardians.

There, Sandra said that her parents were dead and that her pregnancy had resulted from an encounter with a gang member from El Salvador who pulled her off a train in Mexico, held her hostage for several months, and repeatedly raped her.

An ORR field coordinator noted on a report that Sandra was “an emotionally needy child” with “no potential” to be reunited with family – her two brothers in the States had declined to sponsor her after learning she was pregnant. ORR found Sandra a federally funded foster home in Michigan, where she could await the birth of her child and the outcome of the removal proceedings against her.

Sandra didn’t want to be deported. She told her caseworker and her lawyer that she had no one to return to in Honduras and that the grandmother who raised her had mistreated her – once even tying her to a bed for an entire day.

Immigration judges typically don’t consider a child’s best interest. The relevant facts are whether a minor entered the country legally and whether she has cause for immigration relief. But the U.S. has a humanitarian solution for abused, neglected, or abandoned minors who find their way onto U.S. soil. It’s called Special Immigrant Juvenile Status (SIJS), and it puts these children on the path to citizenship.

The path, however, is not free of hurdles. Critics say that SIJS no longer works as intended – that resistance from the Department of Homeland Security prevents too many kids in federal custody from seeking its protection.

A single Washington official decides who can seek it. His name is John Pogash, and last spring Sandra’s fate – and the fate of dozens like her – rested in his hands.

SIJS allows children to escape life-threatening situations – such as homelessness – that don’t fall neatly into one of the grounds for asylum. For an orphan who has no fear of persecution based on her political opinion or, say, religion, SIJS may be her only form of protection.

Unlike other forms of immigration relief, SIJS involves child welfare specialists and requires state and federal authorities to collaborate. For a minor to qualify for SIJS, a state juvenile-court judge must determine that she has been abused, abandoned, or neglected, that she is eligible for long-term foster care, and that it’s not in her best interest to return to her home country. The minor then may apply for SIJS, which would entitle her to limited public benefits and make her eligible to apply for permanent residency.

But in 1997, the government, aiming to prevent abuses of the system, added an extra bureaucratic step for SIJS candidates like Sandra, who were in federal custody. Now, to gain access to a state court, a detained minor needs what’s called “specific consent” from Pogash, the chief of the national juvenile coordination unit of U.S. Immigration and Customs Enforcement (ICE).

“It’s the only form of immigration relief I can think of where you have to ask someone permission to even be able to apply for it,” says Sandra’s attorney, Bridgette Carr.

Carr wrote to Pogash on February 27, seeking consent for Sandra to enter the Michigan juvenile court, where she could be declared a ward of the state. She attached the death certificates of Sandra’s parents and an affidavit from Sandra about the abuse inflicted by her grandmother. She also asked Pogash to make his decision quickly. Sandra’s 18th birthday was less than two months away, and then she’d be too old for a dependency hearing in a Michigan state court – making deportation likely.

ICE, a branch of the Department of Homeland Security, enforces immigration laws, and advocates for undocumented minors say that employees of a department that’s trying to deport these children shouldn’t have the power to block what could be their only way to stay in the country legally.

“They already have the mindset that these people aren’t supposed to be here and it’s their duty to get them out of the country,” says Houston lawyer John Sullivan.

Critics charge Pogash with prejudging the outcome of dependency hearings and sitting on requests until applicants turn 18, making the requests moot. He uses no specific criteria for deciding whether to give consent, preferring, he says, to consider every case individually. This frustrates lawyers, who find the process too arbitrary.

Pogash encourages them to send him evidence to substantiate their clients’ claims, including affidavits, medical records, mental health reports, and police reports. “They’re attorneys,” he says. “They’re supposed to be good at making a case, but sometimes they send two-page letters with a very large signature block.”

Some attorneys who’ve submitted what they believed to be a wealth of corroborating evidence, however, have been surprised by their inability to get consent from Pogash. “He discounts affidavits and psychological assessments,” says Henry Cruz, an immigration attorney in Seattle. “He told one of our attorneys he can get any psychologist to diagnose PTSD (post-traumatic stress disorder).”

Sullivan spent eight months trying to get consent for a Chinese boy who was smuggled into the country at 14, after his mother died. The boy’s father, who’d remarried, considered the boy an economic burden and planned for his son to work underground in the U.S. – first to pay off a $60,000 smuggling debt and then to send money home. The boy, however, was detained at Newark airport with false documents. When the smugglers didn’t get their money, they began harassing and threatening the boy’s family in China, prompting the father to disown the boy.

Sullivan says he made four requests for consent on the boy’s behalf, sending Pogash additional pieces of evidence after each denial, including a statement from the boy’s father in which he said he no longer wanted anything to do with his son because “he put my family in a jam.” The father said smugglers had come to his home and threatened him and his son, saying they’d paralyze or kill the boy if he returned to China. “I would not take care of him,” the father said. “I couldn’t even take care of myself.”

Sullivan says Pogash told him he thought the boy had been abandoned so he could receive immigration benefits, and that numerous conversations with Pogash did nothing to convince him otherwise. “His sticking point was he thought it was all fabricated because our client was in the process of being deported.” (Pogash won’t comment specifically on the case, but says, “There are people from time to time that will fabricate a story for the sake of getting a benefit.”)

Sullivan says he asked Pogash to interview the boy to assess his credibility but that Pogash refused. A month before the boy’s 18th birthday, Sullivan sued Pogash in federal court in Texas. The judge chastised Pogash in his opinion, writing that the boy had presented him with “ample evidence” of abandonment, including the “sadly unmistakable” testimony of his father. Pogash’s decision to withhold consent, the judge concluded, had been made “arbitrarily and capriciously” and “constituted an abuse of discretion.” He ordered Pogash to grant consent.

Sullivan says if Pogash handles other consent requests “in an equally arbitrary way, then he’s preventing deserving juvenile immigrants from the opportunity to go to family court for protection” – and as a result “the U.S. is deporting them to countries where there’s no one to take care of them or they’re in physically or sexually abusive situations.”

Pogash, who has between 20 and 30 consent requests pending at any given time, works in a Washington, D.C., office with one assistant. He says that contrary to what immigration lawyers may believe “we start off accepting the story by the juvenile” and then look for evidence in DHS and ORR files that supports or refutes it. Those files include interviews with the child at the time of his arrest, intake forms, counseling records, and statements made in court.

Pogash says he sometimes denies requests because of inconsistencies in the files. If a minor at the time of his arrest claims everything is fine at home and that he came to the U.S. to work, and then eight months later, after obtaining legal counsel, says his parents abused him, Pogash may believe the claim was concocted solely to prevent deportation.

But when unaccompanied minors first arrive in the U.S., they are often scared and confused. Child advocates say they don’t always know whom to trust. Often the children have experienced trauma at the hands of adults, and their smugglers have told them to lie. Their stories tend to emerge slowly.

Pogash acknowledges that abused children don’t always tell authorities the whole story upfront and says he considers the “totality of the evidence” – not just whether a story has changed. “We’re sensitive to issues involving post-traumatic stress syndrome,” he says.

Last September, a 17-year-old Mexican boy asked Pogash if he could enter juvenile court in Pierce County, Washington. The boy claimed he’d been beaten at home since he was five with belts, cords, tree branches, and horsewhips. Pogash refused the request; he didn’t think the boy’s story added up, in part because he had made calls to his parents from detention.

The boy’s lawyer immediately challenged Pogash’s decision, which took three months and was issued just two weeks before the boy’s 18th birthday. A federal court judge found that the “unexplored and unconfirmed inconsistencies in the paper record” that provided the basis for Pogash’s denial could have “been resolved during a brief interview, had ICE taken the short amount of time required for such a step.” The judge also took ICE to task for its timing. The decision, the judge wrote, was made “on such a late date that there are literally hours left before judicial review will prove meaningless.” The boy would have no chance of obtaining SIJS, the judge continued, unless he filed “his papers in state juvenile court this afternoon.”

Critics say that some things that set off alarms for Pogash – a boy calling his parents from detention – are typical of the dynamic of abuse. “Throughout trauma literature, children who are abused and get removed from home will run away from foster care to be with abusive parents,” says Anne Wideman, a Tucson-based clinic psychologist who volunteers for the Florence Immigrant and Refugee Rights Project and Doctors of the World. “For good or bad, their families are who they have bonded to. Even adult women go back to batterers.”

Child advocates say Pogash’s job is not to determine whether children actually suffered abuse, abandonment, or neglect. That’s the job, they say, of juvenile court judges – people with expertise in such matters. According to an internal government memo, consent requests should be granted “if it appears the child would be eligible for SIJ status if a dependency order is issued” and “if the dependency proceeding would be in the best interest of the juvenile” – but “in effect,” says Carlos Holguin, of the Center for Human Rights & Constitutional Law, in Los Angeles, “Mr. Pogash prejudges the outcome of the state hearing.”

Pogash says that he only denies consent when identity is an issue or he’s “fairly certain” that an applicant isn’t telling the truth. When it’s a close call, he says, he grants the request. From January 2001 to August 2006, he approved 115 consent requests and denied 47. Some advocates, however, wonder how many of the 115 consents came too late to make a difference.

Jacqueline Bhabha, who teaches international human rights and refugee law at Harvard University and recently co-authored a report on unaccompanied minors called Seeking Asylum Alone, found that obtaining consent from Pogash can take up to six months, “with some cases made within days of child’s eighteenth birthday when it is too late to obtain the necessary juvenile court orders.”

Pogash says he typically needs only 90 days to consider a case, and that he’s sensitive to time concerns. “We’re constantly putting one kid in front of the other,” he says, adding that he’s supposed to be getting another assistant soon.

Bhabha says if the government insists on having a consent process it ought to be a function of the Office of Refugee Resettlement, which is responsible for the care and custody of detained immigrant minors. But she also questions whether there’s really need for a gatekeeper to the juvenile courts.

Pogash believes there is. He says that Congress added consent to the SIJ statute as a safeguard against abuses of the system – to ensure that recipients really had a special need to remain in the U.S.

Bhabha says “adequate checks” for such abuses exist without the extra layer of consent: “You do not need immigration authorities to step in.” If there’s no compelling evidence of abuse, neglect, or abandonment, she says, a juvenile court judge wouldn’t declare a child dependent on the state, which is a precondition for a child’s SIJS petition to go forward.

L.A. lawyer Holguin agrees that the process of consent “is irrelevant for ferreting out shams.” After juvenile court, he points out, “there are several stages where the federal government can step in and say this is bogus, it’s not in good faith.”

After being declared a ward of the state, a child petitions immigration authorities for SIJS and applies for a green card. U.S. Customs and Immigration Services, an administrative branch of DHS, then conducts its own investigation, reviewing the juvenile court order and supporting evidence. The child is interviewed and fingerprinted, and a background check is conducted. CIS can deny either application at any point. “It’s not a rubber-stamp process,” says Sandra’s attorney, Bridgette Carr.

Pogash also says his role is necessary because a juvenile court doesn’t have the jurisdiction to make a child in federal custody a ward of the state. It needs permission. “No one can take custody of the kid unless the federal government says you can,” says Pogash.

In April, the Center for Human Rights & Constitutional Law filed a class-action lawsuit in federal court in Los Angeles challenging the SIJS process. The suit charges DHS with unlawful interference with in-custody minors’ access to state courts and of “usurping the role of state dependency courts” by prejudging the children’s cases. The suit also argues that the government unreasonably delays consent until applicants age out. “In essence,” the complaint says, “defendants have wiped out the SIJ statute for in-custody minors.”

Bridgette Carr sent Pogash a consent request on Sandra’s behalf by overnight mail a month after Sandra had given birth to her son and seven weeks before her 18th birthday. “We waited a week, nothing happened,” Carr says. “So we called. We didn’t hear. A few more days passed. We called again.”

When someone in Carr’s office finally got through to someone in Pogash’s office, Carr learned that Pogash was waiting for Sandra’s DHS and ORR files, that he had another possible “age out” in line in front of her, and that it would be at least two weeks before he had any news.

If Sandra didn’t get consent, Carr believed the U.S. would be sending her back to a life of misery and danger. Like many kids in impoverished Honduras, Sandra had had little schooling and had worked from an early age. By the time she was 11, she says, “If I didn’t work, I didn’t eat.” If she got deported, Sandra could leave her baby in foster care – having been born in the U.S., he was a citizen – but she’d made it clear to Carr that she wouldn’t consider that.

Carr was also worried about Sandra’s safety. Shortly after Sandra arrived in the U.S., according to an ORR report, her smuggler, “who works closely with the gang members that held [Sandra] captive,” had called the Indiana shelter, trying to track her down. “Prior to her trip here, she was just a poor girl from Honduras,” says Carr. “Now she’s a victim of gang violence and is viewed as property of the gang – a gang that has a strong presence in Honduras.”

Another call to Pogash’s office on April 4, two weeks after Carr’s last contact, gave Carr cause for further concern. Pogash was out of town. Sandra’s 18th birthday was now 19 days away.

Carr had heard that two teens in Michigan had recently aged out while waiting for Pogash. One, a Guatemalan boy, had turned 18 a couple of months earlier. The other, a Chinese girl, had turned 18 the previous July.

Carr worried it might already be too late for Sandra. She’d been told by other lawyers that it could take a month to get a dependency finding in juvenile court.

On April 7, Sandra received consent from Pogash, and the scramble to get Sandra into Michigan juvenile court before her 18th birthday, on April 23, began. Her caseworker, Christina Diaz, wrote up a petition for dependency and called the juvenile court to see if a judge could hear the case in the next two weeks. Court personnel don’t like having to accommodate minors at the last minute, Diaz says, “but they know how difficult it is to get Mr. Pogash to sign letters.”

Sandra wound up getting into juvenile court with one day to spare, and the judge declared her a ward of the state that very day.

In the end, says Carr, Sandra was lucky. She had been granted consent in time, gotten into juvenile court in time, and been declared dependent in time. “Lots of kids don’t have those steps fall into place,” she says, “and as a result vulnerable juveniles are denied protection for no good reason. It’s not, ‘you don’t qualify,’ it’s ‘you don’t jump through the hoops.’”

*Sandra is a pseudonym for the Honduran girl who was interviewed for this article.

© 2006 Tori Marlan