Elizabeth Anon, Esq. His House Children’s Home, email@example.com
Unaccompanied children are undocumented immigrant children under the age of 18 who lack lawful status in the United States and come without a parent or legal guardian. Within the past decade, the number of unaccompanied children crossing the border has increased. Some of the children are asylum seekers fleeing wars, gangs, or persecution in their home countries, while others are victims of sex or labor trafficking. Children also migrate for economic opportunities, or to join parents or other relatives already living in the United States.
Although unaccompanied children come to the United States from all over the world, most unaccompanied minors are from Central America. According to the Office of Refugee and Resettlement in Fiscal Year 2021, 47% of unaccompanied children were from Guatemala, 32% from Honduras, 13% from El Salvador (the Northern Triangle countries), and 8% from other countries. In the same year, 66% of unaccompanied minors were male and the other 44% were females. 33% of unaccompanied minors are 17 years old, 39% are 15 to 16 years old, 13% are 13 to 14 years old, and 16% are infants to 12 years old.
The legal process for unaccompanied minors is extremely complicated. These children navigate a system made up of complex laws, quickly changing policies, and government agencies, sometimes while being transferred to different cities, and often times alone. Policies and laws have evolved over the past decades as a response to mistreatment of minors, as well as a greater awareness of their vulnerabilities. In 1985, a class action lawsuit was filed on behalf of immigrant children that challenged the detention and treatment of unaccompanied children by what was then known as the Immigration and Naturalization Service (INS). The lead plaintiff, Jenny Lisette Flores, a 15-year-old Salvadoran girl, alleged that during her two-month detention, she was subjected to strip searches and was forced to share a living space and bathrooms with adult men. Additionally, INS refused to release her to family members, and were requiring that her sponsor be a legal guardian. In 1997, the parties reached an agreement known as The Flores Settlement Agreement which ushered in new protections for the care, custody, and release of detained unaccompanied children. This agreement is still in place today.
In 2002, as a result of the events that occurred on September 11, 2001, the immigration system was reformed with the passing of the Homeland Security Act of 2002. Under this act, INS was eliminated, and the Department of Homeland Security (DHS) was created. DHS created three divisions, the United States Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE), who are charged with apprehension, processing, detention and administration of immigration benefits. The Homeland Security Act also transferred the responsibility of the care, placement and release of unaccompanied children from INS to the Department of Health and Human Services (HHS). HHS charged the Office of Refugee Resettlement (ORR) with this task creating facilities to house these children across the country in 2003.
Further protections were provided to unaccompanied children in 2008, with the passing of the Trafficking Victims Protection Reauthorization Act (TVPRA). The TVPRA put in place procedures governing the apprehension, transfer, care, as well as expanded legal protections for unaccompanied children.
From the Border to ORR Custody
Most unaccompanied children are apprehended between United States’ ports of entry along the Southwestern border with Mexico. In FY2021, most of the apprehensions occurred within the Rio Grande (TX), El Paso (TX), and Tucson (AZ) border sectors. Apprehensions are typically made by DHS’s Custom Border Protection (CBP). CBP apprehends, processes, and temporarily holds unaccompanied children in border facilities. DHS’s Immigration and Custom Enforcement (ICE) apprehends unaccompanied children in the interior of the country. ICE also handles custody transfer, has repatriation responsibilities, and represents the government in removal proceedings. Under the TVPRA, CBP or ICE has 48 hours to determine whether a child is an unaccompanied minor. If the child is unaccompanied, and from a country other than Mexico and Canada (contiguous countries), the unaccompanied child should be transported to ORR within 72 hours of determination.
Once in ORR custody, federal law requires unaccompanied children to be promptly placed in the least restrictive setting that is in the best interest of the child, taking into consideration the child’s danger to self, danger to the community and risk of flight. ORR has a network of federally supervised and funded, state-licensed, residential childcare agencies providing residential shelters and state-licensed foster homes for the placement of unaccompanied children. These state-licensed beds are available year-round to provide “standard” beds for the placement of unaccompanied children. Many of these licensed providers are also accredited through the Council of Accreditation (COA), or another accrediting body. State licensure and accreditation of ORR placement facilities are critical elements for child safety and proper care of children in ORR’s custody and is also required by the Flores Settlement Agreement of 1997. Licensing standards exist to ensure the physical site is safe, and staffing levels and services provided to the children are appropriate.
In the state of Florida, ORR has 15 state-licensed shelters and foster families that provide approximately 700 beds for unaccompanied children. State licensed providers also offer case management, mental health and medical health services, classroom education, socialization and recreation activities, as well as access to legal services to unaccompanied children in ORR’s custody while a sponsor is being identified and vetted.
In addition to state licensed residential shelters and family foster homes beds, ORR also employs “influx care facilities” to provide “temporary” beds that can be added or reduced depending on the changing flows of unaccompanied children at the border. These “influx care facilities” ramp up quickly to meet the increasing need for placement beds. These facilities are considerably larger than most standard ORR state licensed shelters and are usually remotely located on federally owned land (on U.S. military installations/bases) or leased properties, thereby exempting them from state or local licensing standards. One such influx/emergency shelter was the Homestead Emergency Receptive Center (ERC) in Florida located at a Department of Labor site next to the Homestead Air Force Base. Homestead ERC was the largest UAC facility operating in the United States at that time, and the only one operated by a for-profit corporation. It opened in June of 2016 and closed in April of 2017. It reopened in March of 2018 and closed again on February 26, 2019. On August 3, 2019, ORR announced that the Homestead shelter was closed and that all children at the facility had been placed with sponsors or relocated to the network at state-licensed UC shelters. During the time that Homestead was in operation, it was the subject of much controversy and media coverage. In February 2019, a congressional delegation visiting the Homestead site characterized its conditions as inhumane and unsuitable for children. Child advocates have also expressed concerns about temporary influx facilities’ large sizes, lack of state licensing standards and oversight, remote locations, and reported understaffing, all of which results in threats to children’s health and safety. ORR responds that influx facilities are necessary in periods of sudden and unusually high migration of children to the country.
Unaccompanied children can be released from ORR custody to sponsors, who are able to care for them in their homes, while they await immigration proceedings. Sponsors are usually adult family members who are suitable to provide for the child’s physical and mental well-being and have not engaged in any activity that would indicate a potential risk to the child. All sponsors must pass a background check. The sponsor must agree to ensure the child’s presence at all future immigration proceedings and must also agree to ensure the minor reports to ICE for removal from the United States if an immigration judge issues a removal order or voluntary departure. Approximately 85% of children are reunified with close family members already present in the United States, and in 40% of the cases with a parent. Families are located all over the country, including Florida. Since 2015, approximately 43,000 children were reunited with a caregiver residing in Florida. More specifically, from October 2021 to March 2022, 6,659 unaccompanied children were released to a sponsor living in the state of Florida, which is second to the state of Texas with 9,138 children reunified with sponsors during that same time period. It is beneficial to the children’s mental health and emotional needs to have ORR residential childcare providers near to the sponsor residence. This assists with visitations, expediting reunifications and for providing continuity of services once the child is released.
The number of children crossing the border fluctuates drastically from year to year. During the first nine years of the UC program at ORR, fewer than 8,000 children were served annually compared to 69,488 children in FY2019. In March of 2020 at the height of the global COVID-19 pandemic, HHS’s Center for Disease Control and Prevention (CDC) exercised an authority under Title 42 of the U.S. Code (public health) that allowed CBP to promptly expel unaccompanied children at the border to Mexico, (their country of last transit), without considering their asylum claims. This drastically reduced the number of unaccompanied children referred to ORR to 15,381 in FY2020. In February 2021, the federal government exempted unaccompanied children from Title 42 expulsions, requiring that children be processed and put into formal immigration proceedings. In FY2021, the number of children referred to ORR increased to an all-time high of 122,731. During the early months of 2021, CBP processing facilities that temporarily housed unaccompanied children were filled far beyond capacity due to record levels of apprehensions. The crowded conditions resulted from a processing backup created by reduced ORR capacity to accept the children from CBP into its shelter network. The decrease in bed capacity was due to “temporary” facilities closing because of the declining demand during the pandemic, and state licensed shelters reducing the number of children sheltered in order to adhere to CDC social distancing guidelines. ORR has since expanded its housing capacity by using influx or emergency intake facilities and relaxing social distancing guidelines at state licensed shelters. ORR uses its temporary influx facilities for older children, thus placing younger and tender age children (infants to 12 years old) in smaller state licensed shelters or licensed foster homes beds.
Disagreeing with the federal immigration policies at the border, on December 10, 2021, Florida’s Governor announced an Emergency Rule that will end care of unaccompanied children in Florida licensed residential shelter/group homes and in licensed foster families. The Rule, officially promulgated by the Department of Children and Families (DCF), determined that the placement of unaccompanied children in Florida “does not constitute evidence of need as required for issuance or renewal of a child-caring license,” which followed the Governor’s Executive Order (EO21-223) signed on September 28, 2021. DCF has chosen to deny new licenses or license renewal to residential facilities and foster families caring for unaccompanied children; to deny any state licensed residential facility or foster family the ability to add to their existing bed capacity for unaccompanied children; and to place new supervision requirements on Florida families who wish to reunite with their children. If other Republican governors in the country follow suit, it will force ORR to place unaccompanied children in unlicensed residential shelter and family foster homes, thus unnecessarily placing unaccompanied children at higher risk of harm.
Legal Process for Unaccompanied Children
Upon apprehension by CBP or ICE, the children are served with a Notice to Appear (NTA). The NTA is the charging document that initiates immigration proceedings upon DHS filing the document with the Executive Office for Immigration Review (EOIR). EOIR is an agency within the Department of Justice which conducts immigration removal proceedings that determine whether a child may be allowed to remain in the United States or must be deported to their home country. These proceedings can begin while the child is in custody of ORR, or upon their release to a sponsor.
Because immigration law is civil law, there is no right to government funded counsel in immigration proceedings, including for children. The TVPRA provides for unaccompanied children to have access to counsel while in HHS custody. Under a current government contract administered by ORR, children in ORR custody have access to legal service providers who provide them with “know your rights” presentations, legal screenings, and direct representation when needed. However, once the child is released, funding for this work is very limited, and thousands of children are left without representation as they continue through their immigration court proceedings. Unfortunately, this means it is common to see young children in court alone trying to defend themselves against a seasoned government attorney. Even more unfortunate is the fact that there is no “best interest” standard in immigration law. This means immigration judges have no requirement to consider the child’s best interest, including the child’s safety, when making the decision of whether the child should remain in the United States or be returned to their country of origin.
There are different forms of immigration relief that would allow unaccompanied children to stay in the United States legally. The most common forms of relief unaccompanied child can apply for are:
Special Immigrant Juvenile Status (SIJ) is a form of relief for abused, abandoned, neglected or otherwise mistreated children under the age of 21 years old. Traditionally, SIJ was pursued as a form of immigration relief for children in the foster care system. However, TVPRA expanded the definition of SIJ to include at-risk immigrant children who are not in the public child welfare system but may otherwise have had a state court determine that reunification with one or both of their parents is not viable due to abuse, abandonment, neglect or something similar under state law.
Unlike other forms of immigration relief, SIJ eligibility is dependent on a state court’s taking jurisdiction and making certain findings regarding the abused, abandoned, neglected or otherwise mistreated child. The state court must find that he/she (1) is a child; (2) has been declared dependent by a juvenile court located in the United States or whom such a court has legally committed to or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States; (3) for whom the court has determined that reunification with one or both of the child’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and for whom (4) it has been determined in the judicial proceedings that it would not be in the child’s best interest to be returned to their home country. In Florida, SIJ is an increasingly common form of immigration relief sought after the child has been subject to some form of state court determination in a dependency, custody, paternity, probate or juvenile delinquency proceedings.
The benefits for a child with an approved SIJ petition are significant as this previously undocumented immigrant child will become a lawful permanent resident. Given the permanency it provides, SIJ is an essential tool to assist undocumented children involved in the child welfare and family court systems to become more self-sufficient and fully productive adults in our community.
Asylum is a form of immigration relief for undocumented individuals who have a fear of persecution in their home country because on their race, religion, nationality, political opinion or membership in a particular social group. The requirements for asylum are the same for both adults and children. However, TVPRA recognized the vulnerability of children by putting special protections in place for unaccompanied children seeking asylum. For example, USCIS has jurisdiction over an unaccompanied minors’ asylum application, even if the child is already in removal proceedings. If the application is not granted by the asylum officer, it is then referred to the immigration judge where the unaccompanied child will have another opportunity to present their case.
If granted asylum, the asylee would be eligible to apply for a green card after one year and is also eligible to apply for certain public benefits, including federal financial aid.
U nonimmigrant status (U visa) is a form of immigration relief for undocumented individuals who have been victims of certain criminal activities, including domestic violence. In order to qualify, the person must establish that he/she: (1) has suffered substantial physical or mental harm as a result of having been a victim of a qualifying criminal activity; (2) has information concerning that criminal activity; (3) has cooperated or will cooperate with the investigation or prosecution of the criminal activity; and (4) the criminal activity violated U.S. laws. A victim is considered someone who suffered direct and proximate harm but may also include a guardian or next friend who can provide information and cooperation when the victim is a child under 16 years old at the time of the crime or is otherwise incapacitated or incompetent.
Immigration law considers a wide range of qualifying criminal activities, including but not limited to felonious assault, rape, sexual assault, and domestic violence. Additionally, to establish collaboration with law enforcement, the U nonimmigrant status petitioner must submit a signed certification from law enforcement agencies. Law enforcement agency is broadly defined in the statute and can include police departments, prosecutors, judges (including Dependency and Family Court judges), and the Department of Children and Families. Lastly, it is not required that there has been a criminal arrest, prosecution or a conviction in order for the undocumented immigrant to be eligible for U nonimmigrant status, or to receive a certification for that matter. An investigation into the criminal activity is sufficient under the federal immigration law. U nonimmigrant status also provides a pathway to becoming a lawful permanent residency.
T nonimmigrant status (T visa) is a form of immigration relief for undocumented individuals who have been victim of severe forms of trafficking. In order to qualify, the person must establish that: (1) they are a victim of severe form of trafficking, (2) physically present in the United States on account of trafficking, (3) have complied with reasonable request from law enforcement in the investigation of the trafficking, unless trafficking occurred under the age of 18 years old, or can show you were unable to cooperate due to physical or psychological trauma, and (4) demonstrate they would suffer extreme hardship involving unusual and severe harm if removed from the United States.
The severe form of trafficking can be in the form of sex or labor trafficking. Sex trafficking occurs when someone recruits, harbors, transports, provides, solicits, patronizes, or obtains a person for the purpose of a commercial sex act, where the commercial sex act is induced by force, fraud, or coercion. If the person is under the age of 18, there is no requirement to show force, fraud, or coercion for sex trafficking. Labor trafficking occurs when someone recruits, harbors, transports, provides, or obtains a person for labor or services using force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt bondage, or slavery. T nonimmigrant status also provides a pathway to becoming a lawful permanent resident.
Congressional Research Services (CRS) reviewed recent EOIR data covering October 1, 2017, through March 31, 2021. Over this 42-month period, EOIR received 72,558 new UC cases and completed 41,940 cases. Of the total completed cases, 25,638 (61%) resulted in removal orders, of which 19,235 (75%) were issued in absentia, meaning that the unaccompanied child had not shown up to the hearing. Of the completed cases that did not result in a removal order, 11,131 (27%) were terminated, (the judge dismissed the case), 3,558 (8%) resulted in voluntary departure, and 127 (<1%) resulted in other outcomes. In 1,486 cases (4% of completed cases in this period), children received some form of immigration relief i.e., SIJ, asylum, T or U Visa. Outcomes varied considerably depending upon whether children received legal representation. Of the total 41,940 completed cases, 22,614 children had legal representation and 19,326 children had none. Of the 22,614 children with legal representation, 37% (8,267) were ordered removed; of those, 40% (3,322) were removed in absentia, and 7% (1,473) received some form of immigration relief. In contrast, of the 19,326 children without legal representation, 90% (17,371) were ordered removed; of those, 92% (19,235) were removed in absentia; and very few children (10) received some form of immigration relief.
In conclusion, regardless of where you stand on immigration policies, the United States cannot revert to a pre-Flores era, where unaccompanied children were detained with unrelated adults of the opposite sex. As child advocates we need to ensure that all laws and policies pertaining to children are governed by the “best interest of the child” standard, irrespective of where the children are from or what their legal status is in the United States. We need to advocate that all unaccompanied children while in federal custody be safely placed, preferably in licensed residential care, and be able to maintain connections with their families while they await their immigration hearings. Additionally, given the severity of what is at stake for unaccompanied children who come before immigration judges, children should have access to court appointed counsel to ensure that their rights are protected, but most importantly that they do not have to face these complex adversarial proceedings alone. We should emphasize that the way the federal and state government respond to children, their personhood and their dignity dictates who we are as a civilized society.