U.S. Detention of Child Migrants

A spike in apprehensions of migrant children crossing the U.S. southern border without a parent or guardian is threatening to overwhelm the systems set up to care for them, and has reinvigorated debate over the detention of minors. The Donald J. Trump administration has called the influx of asylum seekers—both adults and minors—a national security threat, and has implemented a suite of policies meant to deter migrants and combat human traffickers. Critics, including many in Congress, say the administration’s response is exacerbating a humanitarian crisis in Central America, breaking U.S. law, and violating international human rights norms.

What’s the situation at the border?

Immigration authorities apprehended a record-setting 76,020 unaccompanied minors at or near the U.S.-Mexico border during the 2019 fiscal year, an increase of 52 percent over 2018. At the same time, arrests of migrants traveling with family members—some of whom authorities later recategorized as unaccompanied children—more than quadrupled from the previous year, reaching a new peak of 473,682. For the first time, unaccompanied minors and families accounted for more than half of border crossers. Still, despite a recent uptick, total border apprehensions are well below the all-time high set in 2000.

While about three-quarters of unaccompanied children in federal care are fifteen years of age or older, authorities have detained infants and toddlers. Since September 2018, six children have died in the custody of immigration authorities, following a decade without any such deaths.

What is the definition of an unaccompanied minor?

Under U.S. law, unaccompanied alien children (UAC) are defined as migrants under eighteen years old with no lawful status in the United States and who have no parent or legal guardian available to care for them. Despite the term’s connotation, these children do not necessarily enter the country alone. Some arrive with family members and are separated at the border; others are abandoned by smugglers or fellow migrants near the border.

Why are children arriving on their own?

Rampant poverty and violence are driving young people from Central America, with Guatemalans, Hondurans, and Salvadorans accounting for 85 percent [PDF] of detained unaccompanied children. Another 12 percent come from Mexico, where the homicide rate hit a new high in 2019, in the midst of a long-standing war against drug cartels. Many children hope to reunite with relatives in the United States, but others deliberately leave their families behind, fleeing domestic abuse, criminal gangs, or local corruption. Some migrant parents send their children across the border alone to avail themselves of asylum protections for unaccompanied minors.

What happens to detained children?

Most unaccompanied children are detained at or near the U.S. southern border, often turning themselves in to authorities. Their entry into the immigration system triggers a multiagency response guided by several laws and court settlements.

Under the Homeland Security Act of 2002, the Departments of Homeland Security (DHS) and Health and Human Services (HHS) share responsibility for unaccompanied children. These agencies must uphold the 1997 Flores Settlement, which was the result of a lawsuit against federal immigration authorities. Flores outlines standards for the care [PDF] of both accompanied and unaccompanied minors, including access to food and water, emergency medical services, bathroom facilities, and ventilated, temperature-controlled surroundings. Under a 2015 court decision related to Flores and the 2008 William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), which codified certain Flores protections, officials must aim to keep minors less than one month. Nonetheless, they can hold children longer than this during emergencies, including spikes in migrant arrivals.

DHS is the first agency involved. Its responsibilities include apprehension, processing, and, if necessary, the return of children to their countries of origin. Customs and Border Protection (CBP), a DHS agency, initially detains child border crossers, whom it identifies as unaccompanied children through interviews, documents, and medical testing. CBP separates minors on an ad hoc basis from adults it deems unrelated, dangerous, or criminally prosecutable, which results in the recategorization of some accompanied children as unaccompanied. Another DHS agency, Immigration and Customs Enforcement (ICE), may apprehend minors already inside the United States.

At this point, DHS can repatriate Canadian and Mexican unaccompanied children who it determines are capable of making the decision to withdraw their request for entry, are not at risk of trafficking, and can safely return home. For others, the TVPRA gives CBP and ICE three days to transfer custody to HHS officials after identifying the minors as unaccompanied.

HHS, which is responsible for unaccompanied children for the remainder of their time in federal custody, must place them in the “least restrictive setting” possible, which often means group homes, foster care, or other facilities equipped to provide long-term childcare. HHS’s Office of Refugee Resettlement (ORR) distributes many minors in its care across a national network [PDF] of almost 170 state-licensed and federally funded independent facilities, which provide educational, social, health, and legal services. During emergencies, ORR houses children in unlicensed, temporary influx shelters, though it aims to transfer them elsewhere within ninety days.  

Ultimately, ORR seeks to release children to sponsors, preferably parents, whom the agency screens for criminal history and fitness to provide care. When case managers cannot find appropriate sponsors, which happens in about one-third of cases, ORR cares for the children until they turn eighteen. At that point, they can be released or detained in adult facilities run by ICE. As of August 2019, minors remained in HHS care for an average of fifty days [PDF]. HHS has faced criticism for not tracking children after releasing them to sponsors, which it says it has no authority to do.

How is their immigration status determined?

Regardless of whether children are released to sponsors, their asylum and immigration cases continue. All unaccompanied children are screened for asylum eligibility and, unlike adults, they can make a claim even after traveling through a so-called safe third country or after being in the United States for a year.

Children face formidable challenges to prove their cases, often without legal help, experts say. In the last quarter of 2018, U.S. Citizenship and Immigration Services (USCIS), part of DHS, granted just over 28 percent of child applicants asylum, though the agency gives certain unaccompanied minors other forms of legal relief, including special visas for survivors of human trafficking and parental abuse. The overall denial rate for all asylum seekers has climbed steadily in recent years, reaching 65 percent in 2018.

While their asylum cases are pending, unaccompanied children must also navigate backlogged immigration courts overseen by the Department of Justice’s Executive Office for Immigration Review. The TVPRA urges the government to ensure legal support for child migrants, but because immigration cases are civil proceedings, they are not guaranteed attorneys. In 2019, 71 percent [PDF] of Justice Department cases involving unaccompanied minors resulted in deportation orders. Other children voluntarily leave the country, receive asylum or other legal relief, or have their cases thrown out due to insufficient evidence of their unlawful status.

 

How has the Trump administration dealt with the issue?

Trump has pursued hard-line measures to deter asylum seekers, including expanding detention, increasing family separations, and pressing other countries to step up their own detention of migrants. Critics say this has created unsafe conditions for unaccompanied children, but the administration argues that the surge of arrivals at the border has overwhelmed the immigration system and it blames Congress for failing to increase border security funding.  

Most notably, in April 2018, the Justice Department announced a new zero-tolerance policy, which directed authorities to detain and criminally prosecute all adults caught entering the United States without authorization, instead of releasing most of them to await an immigration court date. Minors by law cannot be held alongside guardians awaiting trial, and officials separated at least 4,300 families and recategorized the minors as unaccompanied children between July 2017 and June 2018. Following public outcry, the administration revoked the policy and a federal judge ordered the families reunited. However, separations—which were carried out informally before the zero-tolerance policy—have continued.

Critics have decried the resulting overcrowding of facilities, alleging abuse and linking poor conditions to child deaths. Administration lawyers have suggested that children in CBP custody are not entitled to soap, toothbrushes, and blankets because detention is intended to be short-term. However, the agency has reportedly held children for weeks, in violation of the TVPRA. Additionally, the administration has tried to override Flores Settlement regulations and allow DHS to indefinitely detain families, which it argues would end the need for separating children from guardians. A federal judge blocked those efforts in 2019, but the Justice Department is appealing the ruling.

Trump’s approach to detention policies reflects a broader push to reshape U.S. asylum policy with the stated goal of securing the border. The administration has pursued safe third country agreements with El Salvador, Guatemala, and Honduras; such deals would require migrants traveling through these countries to apply for asylum there first instead of in the United States. A similar deal made in 2019 with Mexico, the Migrant Protection Protocols, requires asylum seekers to wait south of the border while U.S. officials process their claims. The administration has also narrowed asylum criteria for child migrants, terminated funding for their legal representation, and ended prioritization of unaccompanied children’s cases in immigration courts.

Officials characterize these changes as central to fighting human trafficking, since migrants making the journey are often forced to pay exorbitant amounts of money to smugglers who exploit and abuse them, and the administration has implemented measures to prosecute anyone complicit in trafficking minors across the border. Critics counter that the policies unduly target parents who pay smugglers and force vulnerable migrants to remain in dangerous third countries ill-equipped to care for them. Members of both parties in Congress have proposed various reforms to end family separations, but lawmakers have failed to rally around a single proposal.

What did past administrations do?

Detention has played a persistent role in U.S. immigration policy, dating to legislation in the 1890s that standardized practices for detaining migrants for medical and admissibility screenings.

President Ronald Reagan reinvigorated the practice in the 1980s amid a surge in Caribbean and Central American refugees. Officials began detaining all migrants, many in private prisons, and opened the first facility for infants and children. Reagan’s policies faced legal challenges, including the lawsuit over detention conditions for unaccompanied minors that was ultimately resolved by the Flores Settlement.

In the early 1990s, under President George H.W. Bush’s administration, authorities intercepted thousands of Haitian refugees and indefinitely detained them in makeshift facilities at the U.S. naval base in Guantanamo Bay, Cuba. Abuse and forced repatriation of unaccompanied Haitian minors at the facility became a political flash point under President Bill Clinton, who eventually allowed many of the children to enter the United States.

Clinton also fortified the U.S.-Mexico border, constructing a fence and equipping an expanded CBP force with surveillance technologies to detect and track migrants. President George W. Bush later vowed to prosecute anyone, including first-time offenders, caught crossing the border illegally. Unlike Trump’s zero-tolerance approach, this policy was not actually applied to all migrants and did not result in mass separation of children and parents. However, the Bush administration did detain families pending resolution of their cases and separated some. Additionally, Bush signed legislation, including the TVPRA, that defined protections for unaccompanied minors.

Until the Barack Obama administration, however, total numbers of unaccompanied children arriving at the southern border were relatively low. In 2014, a spike in unaccompanied minors threatened to overwhelm existing systems. Obama responded by promising to return the children and coordinating with Central American countries to deter would-be migrants. His administration also funded legal support for unaccompanied minors and established a program to allow more Central American children to come to the United States. Officials did not routinely separate families, though they expanded detention of children and parents in prison-like, unsanitary facilities that critics say violated due process and standards of care under Flores. Obama’s ORR also came under fire for mistakenly releasing some unaccompanied children into the custody of human traffickers.

How do other countries deal with child migrants?

Global migration is at record levels, making displaced children an issue of increasing international concern. Several UN agreements outline countries’ responsibilities to child migrants, most notably the Convention on the Rights of the Child. This 1989 accord affirms that countries should not separate families and should detain children “only as a measure of last resort and for the shortest appropriate period of time.” The United States is a signatory, but it is the only country worldwide that has not ratified the convention, and is thus not legally bound by it.

Based on this and other conventions, the United Nations holds that asylum-seeking children should almost never be detained, and has condemned such practices in the United States and elsewhere. The United Nations has little enforcement authority, however, and some 330,000 migrant children are detained annually, across at least seventy-seven countries [PDF].

This includes a number of countries in Europe, which has struggled with a wave of migration from the Middle East and North Africa that began in 2015. As of 2018, around 42 percent [PDF] of child migrants to Europe were unaccompanied or separated from guardians. The European Union’s asylum law, known as the Dublin Regulation, requires EU states to accept responsibility for unaccompanied children with family members living or seeking asylum there. Detention of migrant families is rampant in the EU, according to the United Nations [PDF], despite members’ stated commitments to limiting the practice. In 2016, the EU’s police agency, Europol, reported that thousands of unaccompanied child refugees in Europe had gone missing since 2014.

Australia has likewise faced controversy over its punitive immigration policies, which include mandatory, indefinite detention of migrants. Conditions in holding facilities on Nauru Island, where Australia houses migrants apprehended at sea, have triggered public outrage. The Australian government reported that, by October 2019, fewer than five children [PDF] were in immigration detention facilities on the mainland, compared to a peak of about two thousand in 2013. Still, critics say Australia’s lack of a legal limit on how long minors can be held has led some child refugees to languish in custody for years.

In Canada, the law allows the detention of migrant children only as a last resort. The number of minors detained through the Canada Border Services Agency (CBSA) totals less than two hundred, with about 95 percent held alongside a parent or guardian. However, experts have raised concerns [PDF] about children detained with their parents in prison-like facilities without legal recourse.

Under U.S. pressure to secure its own borders, Mexico under President Andres Manuel Lopez Obrador has escalated migrant apprehensions. Detentions of Central American children rose 130 percent in the first half of 2019 compared to the same period in 2018. These apprehended minors and adults—some from as far as Africa and Asia, seeking a pathway into the United States—are packed into often dangerous and unclean detention facilities throughout Mexico.

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