Children seeking asylum: Determinants of asylum claims by unaccompanied minors in the United States from 2013 to 2017

• Published date: 01 April 2021
• Author: Daniel Braaten,Claire Nolasco Braaten
• Date: 01 April 2021
• DOI: http://doi.org/10.1111/lapo.12165

ORIGINAL ARTICLE

Children seeking asylum: Determinants of asylum

claims by unaccompanied minors in the United States

from 2013 to 2017

Daniel Braaten

1

| Claire Nolasco Braaten

2

1

Department of Political Science, Texas

Lutheran University, Seguin, Texas, USA

2

Department of Social Sciences, Criminology

Program, Texas A&M University-San

Antonio, San Antonio, Texas, USA

Correspondence

Daniel Braaten, Department of Political

Science, Texas Lutheran University, 1000 W

Court St., Seguin, TX 78155, USA.

Email: dbraaten@tlu.edu

Abstract

This paper examines the treatment and processing of

immigration court decisions for unaccompanied alien

children (UAC) in the United States from 2013 to

2017. We focus on two primary questions in our

research: (1) whether asylum cases involving UAC are

substantially different in outcome than non-UAC

cases, and (2) whether there have been significant dif-

ferences in the immigration courts’asylum decisions

involving unaccompanied minors before and after the

Trump administration came to power. We utilize vari-

ous multilevel models to test individual applicant-,

immigration judge-, county-, and state-level variables

on the likelihood of UAC receiving a positive outcome

in immigration court. We find strong support for the

second hypothesis and mixed support for the first.

Overall, our findings suggest that multiple political,

economic, social, and geographical factors influence

immigration hearings for UAC beyond the individual

strength of any one child’s case.

1|INTRODUCTION

The number of unaccompanied alien children (UAC) apprehended at the southwest border

while attempting to enter the United States without authorization has fluctuated considerably,

surging from 16,067 in 2011 to 68,541 in 2014, declining to 39,970 in 2015, and increasing to

50,036 in 2018 (Kandel, 2019). In 2014, the subject of unaccompanied minors seeking asylum in

the United States garnered national attention when a “surge”of approximately 68,000 minors

crossed the US–Mexico border in the spring of that year, setting a record high (Kandel, 2019).

During the Trump Administration, the issue garnered even more attention, as the administra-

tion had shown outright hostility to the resettlement of refugees in the United States while at

DOI: 10.1111/lapo.12165

©2021 University of Denver/Colorado Seminary and Wiley Periodicals LLC.

Law & Policy. 2021;43:97–125. wileyonlinelibrary.com/journal/lapo 97

the same time instituting a zero-tolerance policy of detaining all immigrants crossing the south-

ern border, as well as a family separation policy of detaining children separately from their par-

ents (Nolasco-Braaten & Braaten, 2019).

Several proposed rules during the Trump administration reflect his restrictive immigration

policies. On June 15, 2020, a proposed rule published at the Federal Register allowed, among

other things, streamlined proceedings instead of regular removal hearings before an immigra-

tion judge in which individuals found to have credible fear of persecution or torture can estab-

lish their claims for asylum, withholding of removal, or protection under the Convention

against Torture (Mizelle & Barr, 2020a). Under current regulations, a noncitizen who estab-

lishes a credible fear of persecution or torture is placed in removal proceedings under §240 of

the Immigration and Nationality Act (INA), which provides greater procedural safeguards and

administrative and judicial review and allows for other forms of relief such as adjustment of sta-

tus (Rahman, 2020). Another proposed rule, published on July 9, 2020 at the Federal Register,

allows the government to consider “emergency public health concerns based on communicable

disease due to potential international threats from the spread of pandemics”such as the

COVID-19 pandemic to deny asylum or withholding of removal in the United States

(Mizelle & Barr, 2020b, p. 1).

The Trump administration’s restrictive immigration policies, together with existing interna-

tional laws, policies, and guidelines requiring the special treatment of minors, necessitate an

inquiry into: (1) whether these policies and guidelines result in any differential treatment,

processing, and outcomes of asylum applications involving UAC; and (2) whether there have

been significant differences in the immigration courts’asylum decisions involving unaccompa-

nied minors before and during the Trump years. Although immigration court proceedings are

inherently adversarial, the regulations in force prior to 2017 allowed immigration judges (IJs) to

establish “child-sensitive”and child-appropriate courtroom procedures and settings (Neal, 2007,

p. 3). The Trump administration, however, has increasingly abrogated the procedural measures

designed to accommodate the unique developmental needs and capacity limits of unaccompa-

nied children seeking asylum.

Our research project examines immigration court processing of asylum claims by UAC in

the United States from 2013 to 2017. Theoretically, we argue that immigration judges are sub-

ject to political pressure from the executive branch and from the local environment in which

they operate. Simultaneously, immigration judges act as judges, making decisions based on the

facts of the case while also allowing their ideology and partisanship to influence their decision

making. Statistical analyses of individual cases decided by immigration judges were conducted

to determine the influence of applicant-level variables (e.g., national origin of applicant, cus-

tody status, and legal representation), judge-level variables (e.g., ideology), and local-, county-,

and state-level variables on the likelihood of receiving a positive judgment in immigration

court.

Our results show that while there are differences in the treatment of UAC asylum seekers

(compared to non-UAC asylum seekers) in immigration courts, there are also many similarities

in the treatment of the two populations. In terms of similarities, we find strong evidence that

the following factors influence UAC decisions: the Latinx population of the county in which

the immigration court is located, the level of democracy of the UAC’s home country, the level

of trade between the UAC’s home country and the United States, whether the UAC comes

from a non-English-speaking country, and the level of unemployment in the county where the

immigration court is located. We find moderate evidence that presence of an attorney, immigra-

tion judge ideology and partisanship, whether the UAC has been detained, and whether the

state in which the court is located has passed more pro-immigration laws than anti-immigration

laws also influence outcomes. Lastly, in terms of continuities, we find weak evidence that if the

immigration court is located in a county on the southern border of the United States and

the UAC is coming from a country that already has a large undocumented population in the

98 CHILDREN SEEKING ASYLUM