E.g., 10/25/2014
E.g., 10/25/2014

What Is the Right Policy Toward Unaccompanied Children at U.S. Borders?

Commentary
June 2014

What Is the Right Policy Toward Unaccompanied Children at U.S. Borders?

Peter Haden

The U.S. government recognizes that the flow of unaccompanied children across its southern border is a genuine migration emergency. On June 2, President Obama assigned responsibility for meeting the needs of the children taken into federal custody to the Federal Emergency Management Agency (FEMA), describing the inflow as an “urgent humanitarian issue.” With 60,000 unaccompanied children, mostly from Guatemala, Honduras, or El Salvador, expected to enter federal custody after crossing the border this fiscal year—up from a tenth that number just three years ago (fiscal year 2011)—attention is understandably focused on keeping these children sheltered, fed, and out of harm’s way. Governmental capacity to care for the caseload is overwhelmed as fast as it can be installed. Everyone knows that the current trend is unsustainable: a broader policy response must quickly follow on the humanitarian one.

In the absence of a policy plan to address the surge in unauthorized child arrivals, simplistic explanations and draconian “solutions” are already starting to make their appearance: the surge is the result of immigration reform promises or administrative reforms in enforcement; the problem could be resolved by bottling it up in transit countries (Mexico and Guatemala) or by treating the children as adults. At the other end of the spectrum, some contend these children should all be given asylum and allowed to stay in the United States permanently.

In reality, the problem is enormously complex. Addressing push factors that include flight from gang violence (and the inability of local police to protect against it) and endemic poverty as well as pull factors such as the deeply held desires for family reunification require policy interventions not just by the United States but within the region.

Of course, there is no single policy approach that is going to bend the curve on unaccompanied child arrivals. There is a great deal we do not know. Some research is starting to emerge to give a picture of why children are leaving their homes and running such huge risks to get to the United States. The Border Patrol, which apprehends the children, and the Office of Refugee Resettlement (ORR), which takes custody of them once they are processed by the Border Patrol, have lately been open with information about the numbers and kinds of arrivals they are seeing. The U.S. Conference of Catholic Bishops, the North American office of the U.N. High Commissioner for Refugees (UNHCR), Appleseed, and Kids in Need of Defense (KIND) together with the University of California Hastings Center for Gender and Refugee Studies have published reports examining the motivations, experiences, and protection needs of unaccompanied child migrants. (The Migration Policy Institute will add its own research findings to this body of evidence in late June.)

The research findings are preliminary but sobering. The UNHCR report, based on a small but representative sample, suggests that high proportions of the children in custody—nearly six out of ten—have had experiences that may form the basis for relief from deportation: as refugees, victims of trafficking, juveniles recruited into criminal enterprises, or other statuses. Statistics from the Vera Institute of Justice’s Unaccompanied Children Program, funded by the Department of Health and Human Services, show that 40 percent of unaccompanied child migrants taken into ORR custody in 2008-10 and screened under the VERA program were eligible for some kind of relief.

The growing evidence base provides key insights for policymaking, but a far-reaching policy response has yet to emerge. When it does, it will need to have a lot of moving parts if it is to be effective and consistent with U.S. law. A policy plan needs to incorporate the following goals all at once (and if key parts are missing, all will be weakened):

  • Child-friendly screening to establish which children need protection or have another valid claim to remain in the United States. This means both “Know Your Rights” sessions for children in custody and facilitating—and to the extent possible providing—legal counsel when they go into immigration hearings. Children should never be required to go into immigration court alone, as most do. Most of those who have counsel rely on pro bono lawyers provided by nonprofit organizations such as KIND, although the Justice Department recently announced it would fund $2 million in grants to provide about 100 lawyers and paralegals for children facing deportation.
  • Thorough but swift court hearings for children followed by return to their home countries in an expeditious manner for those who do not have a claim to remain in the United States—so that court delays do not in themselves become an attraction for illegal immigration. Swift return would also help to disrupt the business model of the smugglers, who charge stiff fees and offer specious guarantees that kids will be allowed to remain in the United States.
  • Safe return and reintegration programs devised and implemented in cooperation with countries of origin so that return is a sustainable option that does not place deported children in danger of extreme deprivation, discrimination, or violence in their homes or communities.
  • A crackdown on smugglers and others who abuse children while misleading and exploiting their families.
  • Support for countries of origin to identify at-risk kids before they undertake the dangerous journey north, and interventions to support and assist these children so that emigration does not seem their only option for a decent life.
  • Training for members of the Border Patrol, FEMA, and other authorities who come into contact with child migrants on the laws that apply particularly to children, and on appropriate ways of treating kids at apprehension, in detention, in court, and on release to an adult family member or guardian.
  • Better routes to family reunification for children whose parents are in the United States legally. This would require amendments to some elements of U.S. law. For example, the law on Temporary Protected Status can extend legal status to people for many years but does not allow them to bring their children to join them.

Comprehensive immigration reform, when and if it comes, needs to include reasonable family reunification measures for legalized immigrants who still have minor children left at home. In the meantime, there is no available alternative to providing kids with due process and access to education while they are here. If the horrendous journey most of them undertake isn't enough to deter them, being badly treated here will not be either.

It will be a long, hard process to get on top of this, but a policy plan that includes the measures outlined above can succeed in aligning the law enforcement and humanitarian interests of the United States. We need to work on as many pieces of it as possible in a coordinated way that does not violate our own laws and values. That is as close to a “right approach” as we can get.

Kathleen Newland, Co-Founder of the Migration Policy Institute, leads its humanitarian protection work.