Unaccompanied children and the U.S. immigration system: challenges and reforms.

• Author: Chen, Annie
• Position: Child Migration

In fiscal year (FY) 2014, approximately 60,000 children with no lawful immigration status and no parent or legal guardian present or available to provide care were apprehended at or near the U.S. border and turned over to the custody of the federal Office of Refugee Resettlement (ORR). These unaccompanied children (UAC) were charged with violating U.S. immigration laws and were placed in deportation proceedings. They enter a system that involves numerous government agencies which they must navigate. Most are released by ORR if they have family or another sponsor in the United States able to care for them, though they must continue to fight their deportation in immigration court, often without an attorney. Many UAC have legitimate claims that would lead to legal status if they could navigate the country's complex web of immigration laws--approximately 40 percent of UAC are potentially eligible for some kind of relief from deportation. This article discusses the immigration system that UAC encounter, challenges they face within this system and proposals for reform. First, it provides a general overview of the U.S. immigration legal and detention system that UAC come into contact with when they arrive at the border. Then it discusses legal remedies available to this population and explains the difficulties of obtaining legal status as well as other challenges children face after release from ORR custody. The article then surveys the growing consensus about and efforts for reform--such as appointing government funded counsel for children, broader proposals to create a more "child-friendly" immigration system, and the need for more comprehensive immigration reform. The article also explores threats to the current system that extends due process protections to these vulnerable immigrants. (1)

INTRODUCTION

In FY 2014, approximately 60,000 children under the age of eighteen were apprehended at or near the U.S. border and turned over to federal custody. The children had no lawful immigration status and no parent or legal guardian present or available to provide care in the United States. (2) These "unaccompanied alien children"

(UAC) are charged with violating U.S. immigration laws and are placed in deportation proceedings, where they must navigate a complex bureaucratic system that involves numerous government agencies. (3) Most UAC are temporarily released to a family member or another sponsor in the United States if one is available to care for them. Many UAC are eligible for legal remedies that would allow them to remain permanently in the United States. However, they are often left to pursue legal status without the aid of an attorney to help navigate the complex legal systems involved.

This article discusses the immigration system that UAC encounter, challenges they face within this system, and proposals for reform. First, it provides a general overview of the U.S. immigration legal and detention system that UAC encounter. Next, it discusses legal remedies available to UAC and explains the difficulties of obtaining legal status as well as other challenges faced when seeking relief from deportation. The article then surveys the growing consensus about efforts to reform the system, such as appointing government-funded counsel for children, broader proposals to create a more "child-friendly" immigration system, and the urgency for more comprehensive immigration reform. The article also explores threats to the few benefits offered by the current system that extend due process protections to these vulnerable immigrants.

WHO ARE THEY, WHERE ARE THEY COMING FROM, AND WHY?

During FY 2014, ORR--the federal agency responsible for placing UAC in appropriate temporary care settings--received a total of 57,496 referrals from the U.S. Department of Homeland Security (DHS).4 This represented an unprecedented influx of UAC into the United States. Although this captured the attention of the media and federal and local governments, as a general trend this was old news. In 1999, approximately 2,000 UAC were in federal custody. (5) By FY 2012, the number had skyrocketed to 13,625. (6) This number then nearly doubled in FY 2013, when 24,668 UAC entered U.S. custody. (7) These numbers do not include the many children from Mexico who are returned almost immediately without referral to ORR. (8) The numbers also fail to account for the numerous other children who cross the border undetected by authorities, or those who are apprehended and detained along with family members. (9) Although ORR receives children from a wide range of countries, the vast majority of UAC in ORR custody are from Central America's "northern triangle" countries of El Salvador, Guatemala, and Honduras. (10) Most UAC in federal custody have traditionally been older teenage males, but in recent years there has been an increasing number of younger children and females. (11)

Although the root causes of the migration of UAC to the United States are much debated, it is generally agreed that a combination of "push" and "pull" factors often contributes to the decision to make the journey despite its risks. These factors include: societal, household, and gang violence and recruitment; abandonment or neglect by caregivers; human trafficking; and the social exclusion of certain recognizable groups within the home countries, such as homosexuals and marginalized religious groups. In many countries, these problems are further exacerbated by the local government's inability or unwillingness to address these problems. Flight from poverty is yet another common cause of migration. In addition to these and other conditions in the home country, the lure of reuniting with loved ones already in the United States and potential economic opportunities--whether real or imagined--also attract UAC and many others. (12)

UAC face significant perils during the journey. They may be mistreated by smugglers, fall prey to human traffickers, or susceptible to abuse. Drug cartels frequently force children to smuggle drugs and accompany adults across the border. For those UAC who are apprehended by U.S. immigration authorities, the experiences of apprehension and detention, release into an unfamiliar society, and the simultaneous demands of seeking legal relief from deportation often create enormous pressures on the children.

U.S. IMMIGRATION DETENTION AND LEGAL SYSTEMS ENCOUNTERED BY UAC AND THE CHALLENGES FACED BY UAC SEEKING RELIEF FROM REMOVAL

FEDERAL CUSTODY OF UAC

The U.S. Customs and Border Patrol's (CBP) Office of Border Patrol apprehends the vast majority of UAC at or near the U.S. border. (13) Those apprehended in other contexts on suspicion of violating immigration laws--such as during worksite enforcement or anti-trafficking operations, or in the course of an arrest for a non-immigration related offense--encounter agents of other DHS subsidiaries, most commonly U.S. Immigration and Customs Enforcement (ICE).

Once a CBP or ICE officer confirms that an apprehended youth is "unaccompanied" and is not subject to "voluntary return," the youth is then transferred to the care and custody of ORR, which is responsible for placing UAC in appropriate care settings. According to the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which includes many provisions intended to ensure the safety and well-being of apprehended UAC, this transfer must occur within seventy-two hours of determining that a child is unaccompanied (which must occur within forty-eight hours of apprehension). (14) However, immigrant rights advocates have documented much longer stays in CBP custody for apprehended UAC, particularly during the recent influx of UAC across the southern border. (15)

ORR contracts with a network of state licensed residential facilities around the country, including private and nonprofit organizations and juvenile justice agencies, to house UAC in different types of settings depending on the UAC's best interests and level of security risk. These facilities provide UAC with classroom education, health care, socializing/recreational activities, vocational training, mental health services, access to legal services, and case management. (16) In mid-2014 the federal government began housing UAC in three designated military bases as a temporary emergency response to the overwhelming number of UAC crossing the southwest border. (17) This practice, which was phased out during the summer of 2014, was criticized by advocates as being an inadequate and inappropriate response to the children's needs. (18)

One of ORR's primary duties is to identify an appropriate adult "sponsor," if any, with whom the child can live pending the outcome of the child's removal proceedings in immigration court. Although priority is given to placing children with a parent if one is present in the United States., consideration will also be given to other relatives and certain non-related adults. (19) Approximately 85 percent of UAC are released from federal custody to sponsors. (20) In FY 2014, the five states with the greatest number of UAC released to sponsors--a process commonly referred to as "reunification"--were Texas, California, Florida, New York, and Virginia, in order from highest to lowest. (21) If no sponsor can be identified, a child may be placed in a long-term foster care setting. (22) ORR is required to conduct "home studies" prior to releasing a child to a sponsor where there are certain indicators of possible safety risks to the child. (23) ORR also provides follow-up services to certain particularly vulnerable children after their release from ORR custody, to help ensure that the child is connected with support services in the community. (24)

IMMIGRATION PROCEEDINGS

From the time of apprehension, UAC are put into "removal proceedings" in immigration court--an adversarial process in which a government attorney argues before an immigration judge that the child should be deported. Though...