MAKING ROOM FOR CHILDREN: A RESPONSE TO PROFESSOR ESTIN ON IMMIGRATION AND CHILD WELFARE. (response to article by Ann Laquer Estin in this issue, p. 589)

• Published date: 22 September 2018
• Author: Su, Rick
• Date: 22 September 2018

INTRODUCTION

Once again, we find ourselves fiercely divided over immigration. Yet the striking thing is how much the debate today is centered on children. Having abandoned comprehensive immigration reform, Congress now turns its attention to the more limited question of what to do with the approximately one million "Dreamers" who were brought to this country illegally as children. (1) As the scope of immigration enforcement efforts expand, public attention is increasingly being drawn to how deportation affects children who face separation from their parents. (2) Even on the issue of border security, the growing concern appears to be the recent wave of unaccompanied children coming to America to seek asylum. (3)

If children are increasingly the focus of immigration, then perhaps it is time that immigration focus on children. As Professor Estin reminds us, America has long been committed to the welfare and protection of children. (4) This commitment is woven throughout American law. (5) We affirm it as signatories to international accords. (6) And when it comes to immigration, Congress has recognized the special challenges and vulnerabilities that children face--not only in getting to our country, but also in the immigration proceedings that follows. Nowhere is this more evident than the special protections and procedures in place for unaccompanied children in our immigration system. (7)

But despite all this, Professor Estin is also right that "[w]e could and should do better." (8) My fear is that things may get a lot worse before they get better. Not only are protections for children in our immigration system limited, but the protections that exist seem increasingly at risk. The prospects for federal partnerships with state and local child welfare agencies and courts, which have more experience and expertise with child welfare issues, seem increasingly remote as federal-local clashes escalate over immigration enforcement. All the while, the federal agencies that Congress has tasked with looking after the best interest of children struggle to handle their growing numbers and political pressures to prioritize enforcement above all else.

Many of these problems are connected to President Trump and the policies and priorities of his administration. But I also want to suggest that the challenges go a lot deeper, and may be inherent in how the issue of immigration have traditionally been cast and the institutional manner in which it has historically been regulated. Overcoming these challenges, in my view, will require more than political will and zealous advocacy. It might also require us to rethink how our nation regulates immigration more generally.

I.

Children face many challenges in our immigration system. But one of the biggest is how infrequently their interests are accounted for in our immigration laws, and how often existing protections for children are undermined or rolled back.

One problem is that even as our nation's preoccupation with immigration regulations grows, its scope remains narrow. Laws have been passed to account for the interest of children who are in federal custody or immigration proceedings. But little has been done to address the welfare of children who are affected by immigration enforcement actions, but who are not the targets themselves. Take, for example, what happens after immigration enforcement operations, especially large-scale raids common during the Bush administration and increasingly been used today. (9) In the immediate aftermath, children of immigrants who are apprehended often find themselves abandoned at home or at school. (10) At the same time, school officials and local communities members are left scrambling to locate these children and make arrangements for their care. (11) Federal immigration officials took some steps to minimize the effect of their operations on children. (12) But by and large, these have been limited, and federal officials have largely been silent on the impact of these raids on children or developed regulations or guidelines addressing these concerns. (13)

Moreover, commitment to child welfare often fades when it comes into direct conflict with the goals of immigration enforcement. This is especially true when children are cast as a way for the undocumented to elude deportation. Throughout the twentieth century, Congress has repeatedly made it more difficult for immigration judges to grant discretionary relief to deportees on account of the best interest of children born and raised in the United States. (14) The interests at stake here are those of American citizens. Yet their status as fellow citizens are obscured when they are derisively cast as "anchor babies." (15)

Fear that children create "loopholes" in our immigration system continues to resonate in today's political debates. Indeed, this fear is threatening to roll back the few protections that Congress has provided for the children themselves, and the agency practices developed to ensure their care. In 2002, Congress transferred jurisdiction over unaccompanied children to the Office of Refugee Resettlement ("ORR") in the Department of Health and Human Services ("HHS"). (16) In 2008 Congress instructed ORR to place these children "in the least restrictive setting that is in the best interests of the child." (17) In carrying out this charge, ORR typically releases these children to the care of family members while their immigration claims are adjudicated. (18) Part of the reason for this is that ORR lacks the capacity to maintain custody of the growing number of unaccompanied children under their jurisdiction, especially in a setting that is appropriate for their care and development. Yet it is also in accordance with their statutory obligation to provide the "least restrictive setting" and account for the children's "best...