Hampered by the Pandemic: Unaccompanied Child Arrivals Increase as Earlier Preparedness Shortfalls Limit the Response
Hampered by the Pandemic: Unaccompanied Child Arrivals Increase as Earlier Preparedness Shortfalls Limit the Response
In February and March, the number of unaccompanied child migrants referred to the federal Office of Refugee Resettlement (ORR) exceeded the agency’s shelter capacity, leading to serious backups and overcrowding at U.S. Customs and Border Protection facilities. While much of the media attention has highlighted increased arrivals of children at the U.S.-Mexico border, far less focus has been given to the reduction of shelter capacity that occurred before the numbers of arrivals began increasing. The Biden administration took office with less than half of the shelter capacity that ORR had estimated was needed for preparedness. To understand the challenges now facing the administration and the options for moving forward, it is important to look at preparedness shortfalls as well as the number of arrivals.
About 6,000 to 8,000 children were referred to ORR annually prior to 2012, when the numbers began growing, most dramatically in 2014. Arrivals peaked in fiscal year (FY) 2019, during the Trump administration, with more than 69,000 referrals. In spring 2019, almost all ORR shelter beds were full and there were significant backups of children in CBP facilities. In response, Congress provided ORR with a $2.9 billion supplemental appropriation to address immediate needs and strengthen preparedness.
Figure 1. Unaccompanied Child Referrals to ORR by Fiscal Year, 2010-21*
Note: The 2021 estimates are for the first four months of the fiscal year.
Sources: FY 2010 and 2011 data from U.S. Department of Health and Human Services (HHS) Administration for Children and Families (ACF), Fiscal Year 2017 Justification of Estimates for Appropriations Committees (Washington, DC: ACF, 2016), 240, available online; FY 2012-20 data from ACF Office of Refugee Resettlement (ORR), “Facts and Data—Referrals Table,” updated March 12, 2020, available online; FY 2021 data result from Migration Policy Institute (MPI) calculations of estimated referrals through January drawing from average daily referrals available from HHS, “Latest UC Data – FY2021,” last updated March 2, 2021, available online.
The Pandemic Complicates Preparedness
It is not easy to determine the best preparedness level, because it is impossible to predict with confidence how many children are likely to arrive in a month or a year. As a result, ORR needs to balance two considerations. On one hand, the agency wants to have enough shelter space to receive all arriving children without needing to turn to emergency facilities or have children backed up in CBP holding facilities, which are universally recognized as inappropriate places for them to spend any sustained amount of time. Yet the agency will face criticism and budget constraints if it is paying for large numbers of empty beds. So, the goal is to have enough shelter beds to meet a range of reasonably foreseeable situations and have access to additional influx facilities that can be called on if necessary.
Box 1. Background
Minors who arrive at the U.S. border without legal status and without a parent or legal guardian are classified as unaccompanied children. Typically, unaccompanied children from Mexico who arrive at the Southwest border are returned to Mexico. U.S. Customs and Border Protection (CBP) is required to refer all other unaccompanied minors to the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (ORR) within 72 hours of determining the child is unaccompanied, absent exceptional circumstances.
ORR assumes custody of unaccompanied children after referral and arranges to place them in an ORR-funded shelter or other facility. While children are in ORR custody, staff work to determine if they have parents, relatives, or other appropriate persons with whom they can live while their immigration proceedings are pending. If ORR determines there is a suitable sponsor, the child is released to the sponsor and federal custody ends. Children without a suitable sponsor remain in ORR custody until they turn 18 unless they accept voluntary departure, are granted legal status, or are removed through immigration proceedings.
The great majority of unaccompanied children—93 percent in fiscal year (FY) 2019 and 87 percent the following year—are from El Salvador, Guatemala, or Honduras.
Multiple factors have contributed to increased arrivals of unaccompanied children in the past decade— violence, crime, and the dominating roles of gangs in the countries of origin; poverty and severe economic conditions, exacerbated by natural disasters; and the fact that unaccompanied children often have a parent or close relative in the United States, though they may not have lived together for many years.
With its supplemental funding, ORR set a preparedness goal of having approximately 16,000 state-licensed beds and the ability to activate 2,000 influx beds when needed. The agency was apparently close to this goal in early 2020, and told the Government Accountability Office in July 2020 that it had approximately 13,500 beds, with 5,000 more funded though not yet available for use.
Two key developments in 2020 altered the picture: the COVID-19 pandemic and a public-health order that made it possible to expel border arrivals, including unaccompanied children. After the pandemic hit in early 2020, the number of available licensed beds fell sharply. There were several reasons for this—state and local requirements, federal health guidelines, social distancing standards, the need to quarantine and isolate children, and staff absences. Staff absences resulted from illness and because ORR imposed a staffing freeze on shelter providers for a number of months. In November 2020, officials estimated ORR operational capacity had been reduced by about 40 percent, down to 7,800 operational beds.
The sharp reduction in capacity did not cause a shortage of bedspace because the number of children referred to ORR during 2020 fell to its lowest level since 2013. One reason was likely the difficulties in traveling during the pandemic and enforcement efforts in Mexico. Another reason was that the federal Centers for Disease Control and Prevention (CDC) issued an order in March 2020 essentially barring all unauthorized persons from entering the United States via land borders. Under the order, reportedly issued in response to White House pressure and under objections from CDC experts, the Department of Homeland Security (DHS) expelled 15,867 unaccompanied children during 2020.
Referrals to ORR fell to near zero for April through July and remained very low through the fall. The situation changed after a federal district judge issued an order on November 18, 2020 enjoining the practice of expelling unaccompanied children. Referrals to ORR doubled between October and December and have continued to grow since then. On January 29, an appellate panel lifted the district court’s order while the case is on appeal. The Biden administration then decided not to resume unaccompanied child expulsions.
It is understandable and commendable that ORR allowed beds to go offline early in the pandemic because it wanted to minimize risks for staff and children. While it would not have been easy to add bedspace during the pandemic, it seems clear that a decision was made not to rebuild capacity and instead rely on the fact that less capacity was needed while the government was expelling children.
Consequences and Considerations Ahead
There were 5,126 children in ORR custody at the end of January, a reported 7,700 at the end of February, and about 11,900 as of this writing. The March arrival numbers are likely to be the highest on record. The multiple difficulties with efforts to find and stand up influx facilities and emergency intake sites are a direct consequence of not having had sufficient bedspace and having needed to add substantial capacity quickly.
Figure 2. Number of Unaccompanied Children in ORR Custody, 2017-21*
Sources: MPI calculations for data from 2017 through January 31, 2021 from HHS, “Unaccompanied Children Information,” available online; for February 2021 from HHS, ACF, “Fact Sheet, Unaccompanied Children Program,” available online; for March 2021, Michelle Hackman and Tarini Parti, “Biden Tries to Stem Border Surge with Diplomacy, More Shelter Space,” Wall Street Journal, March 25, 2021, available online.
Could the mismatch between arrivals and capacity have been avoided? After the appellate court order, the Biden administration could have chosen to resume expelling children. Presumably, it made the decision to end expulsions both based on the strong legal case that the expulsions were unlawful and because it recognized the special vulnerabilities of unaccompanied children. Moreover, at the time the decision was made, the number of children in custody was still well below available bedspace.
It is possible that there would be fewer unaccompanied children had the administration not continued expelling families with children. Most families were no longer being expelled in February, but the policy is still unclear. There are multiple reports that in some cases when families cannot cross the border together, parents send children across unaccompanied. There are no data to know how big a factor this is in the current numbers. HHS could bring insight to this issue by drawing from shelter interviews with children to get a clearer picture of how often this is occurring and under what circumstances.
Going forward, there are broader issues in immigration policy for the Biden administration, including what to do about the expulsions continuing under the CDC order for single adults and families and how to rebuild a functioning asylum system, address circumstances of families arriving at the border, and develop a long-run strategy to help improve conditions in countries of origin. The administration has reinitiated the Central American Minors Program to allow for in-country processing for some children, which is an important step. But absent major changes in eligibility rules, the numbers admitted through the program are likely to be small in relation to children arriving at the border.
In the near term, HHS has two main available strategies to address the mismatch between arrivals and capacity: increase shelter capacity and speed releases to sponsors. Both are necessary, but neither is easy.
To expand capacity, it is always preferrable to increase licensed beds because it is better for children to be in state-licensed and monitored facilities than in costly influx facilities not subject to state licensing and monitoring. However, quickly adding significant numbers of new licensed beds is probably impossible in an emergency situation. Bringing licensed beds online can take six months or more, so the Biden administration opened an influx facility in Carrizo Springs, Texas and emergency intake sites in Midland, Dallas, and San Diego. It is planning to activate additional facilities on an urgent basis.
It remains unclear how many licensed beds remain offline for COVID-related reasons and whether a substantial number could be brought online. HHS has encouraged providers to reexamine their capacity in light of current guidance; providers should be able to clearly explain why any offline beds are in that status and it is crucial to determine if licensed beds currently not in use can be brought online. Beyond that, when it is necessary to use influx facilities, it is important to ensure that children are there for the shortest time possible; staff are qualified; health, educational, legal, and other services are in place; and that there is a strong monitoring framework. The emergency intake sites appear to be closer to holding facilities than shelters and have fewer services and supports than the influx facilities. In addition to efforts to improve conditions, it is important that information be publicly available about the conditions, services, and characteristics of children in all facilities.
The length of time children are in federal custody has varied over time. The great majority are released to a parent, relative, or other person designated by the child’s parents after the potential sponsor is vetted. The average length of time in custody for released children was reduced from 72 days in 2011 to 34 days in 2015 and 38 days in 2016. Length of stay grew during the Trump administration, reaching 93 days in November 2018 in the aftermath of family separation and heightened fingerprint requirements and information sharing with immigration enforcement regarding potential sponsors and persons in their home. The average length of stay was 42 days at the end of January.
Speeding the discharge rate is clearly possible and some decisions can be straightforward, but others likely involve hard tradeoffs. Ensuring a strict separation between ORR services and immigration enforcement can speed discharges because sponsors will be more likely to come forward, and the termination of HHS-DHS information sharing for enforcement was a key step. Further increasing staffing devoted to the discharge process can help. Improving guidance to staff about which inquiries are and are not needed in the sponsor vetting process can matter, as can ensuring that time is not lost when children are transferred between facilities and identifying which aspects are most contributing to the length of the process. But some shortcuts in vetting sponsors, e.g. reduced background checks and verifications, can increase risks to children, which makes it important to carefully weigh benefits against risks. Historically, the greatest concerns about risks of trafficking or other abuses occur when children are released to non-relatives.
Finally, some children in ORR custody arrived at the border with a close relative, such as a grandparent or adult sibling, but under federal law are classified as unaccompanied. It remains unclear how many children are in ORR custody for this reason, but developing a highly expedited process for approving these close relatives as sponsors would prevent needless family separations and reduce the number of children in custody.
Having an immigration system that allows children to enter the country and have their protection claims heard and treats them humanely and allows for family reunification is much preferable to one that expels unaccompanied children without considering their circumstances or claims for immigration relief. The long-term challenge is to rebuild the asylum system and work with the countries of origin to address underlying conditions. The short-term challenge is to have adequate capacity for arriving children. The Biden administration began at significant disadvantage because that capacity was not in place, but it must now navigate the tradeoffs in developing and implementing emergency facilities and adjusting discharge policies, and proceed with transparency in doing so.
Mark Greenberg was Acting Assistant Secretary for the Administration of Children and Families in the Department of Health and Human Services from 2013-16, and participated in the HHS agency transition team for the incoming Biden administration. This commentary uses only publicly available information.