The humanitarian crisis currently unfolding on the southwestern border of the United States has captured public attention in recent weeks. An unprecedented number of unaccompanied children have fled extraordinary violence and poverty in El Salvador, Guatemala, and Honduras in search of refuge. The United Nations High Commissioner for Refugees reports that the number of youth who have departed for the United States has effectively doubled every year since 2011, and the U.S. government projects that approximately 127,000 unaccompanied minors will reach the border by the end of fiscal year 2015. Alarmingly, these recent events have called into question the future of a law designed to protect the rights of the most vulnerable migrants of all: unaccompanied children.
At the end of June this year, President Obama released a letter to Congress in which he requested legislative support “to ensure that we have the legal authorities to maximize the impact of our efforts,” including “providing the Department of Homeland Security Secretary additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador.” As White House Press Secretary Josh Earnest further elaborated in a press briefing the same day, “We have asked for additional resources to make sure that we can process these claims as quickly as possible.” He explained that the Obama administration had therefore requested “additional authorities that could be used at the discretion of the Secretary of Homeland Security to process the cases as, ultimately, if it is found that the child…does not have a legal right to stay in the country, that they can be returned to their home country and properly reintegrated.” Specifically, the executive has requested that Congress amend the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) in order to “fast-track deportation decisions.” An administration official cited in USA Today argued that the “changes are necessary to update a law that was crafted when the flow of unaccompanied minors crossing the border was far lower.”
The volume of children crossing the border, however, does not change the importance of the values underlying the TVPRA. Unaccompanied children have special needs associated with their age, and therefore authority for their custody and care should not reside with those charged with border enforcement. Instead, through the legislative leadership of Senator Dianne Feinstein, Congress moved this responsibility to the Department of Health and Human Services Office of Refugee Resettlement. Senator Feinstein’s “Unaccompanied Alien Child Protection Act of 2007” further advanced this principle, originally codified in the Homeland Security Act of 2002. As she presciently wrote at the time, “This legislation will ensure that unaccompanied children receive humane and appropriate treatment while in the custody of the United States government,” and would also “give unaccompanied minors access to pro bono legal counsel and someone to look after their best interest.”
The Unaccompanied Alien Child Protection Act of 2007 was endorsed by the United Nations High Commissioner for Refugees and numerous nongovernmental humanitarian organizations. It was cosponsored by then-Senator John Kerry, and was incorporated into the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 sponsored by then-Senator Joe Biden. The TVPRA was approved by both the Senate and the House unanimously, and signed by President George W. Bush in the final year of his administration.Under the law as it currently stands, unaccompanied minors from noncontiguous countries must be transferred from the Department of Homeland Security (DHS) to the Department of Health and Human Services (HHS) within seventy two hours of a determination by DHS that the child is “an unaccompanied alien child.” HHS is then required to ensure that the child is “promptly placed in the least restrictive setting that is in the best interest of the child.” Additionally, while in the custody of HHS, the child is to be provided legal orientation under the auspices of the Legal Orientation Program of the Executive Office for Immigration Review and afforded access to pro bono legal counsel.
It is important to emphasize, however, that none of this changes the child’s vulnerability to deportation if the child is deemed ineligible for asylum in the United States. Secretary of Homeland Security Jeh Johnson has emphasized this point repeatedly in his recent public remarks. Indeed, in an open letter addressed to the parents of unaccompanied children traversing the southwestern border of the United States, Secretary Johnson explained that “under current U.S. laws and policies, anyone who is apprehended crossing our border illegally is a priority for deportation, regardless of age.” “The document issued to your child is not a ‘permiso,’” he went on, “but a Notice To Appear in a deportation proceeding before an immigration judge.”
Underlying this legal architecture, as USA Today’s Alan Gomez explains, is a distinction between contiguous and noncontiguous countries. An unaccompanied minor who migrates from a contiguous country can be screened directly by a U.S. Customs and Border Protection officer and repatriated directly if the child is ineligible to remain in the United States under current immigration law. However, for unaccompanied minors from all other countries, any return to their country of origin requires further onward travel. As a result, the law requires that such children be delivered into the care of HHS. From there, HHS is to work to provide legal counsel who can adequately inform the child about the asylum application process and other options for remaining in the United States. Notably, a White House official confirmed that “the administration is considering asking Congress for permission to treat Central American minors similarly to how the government treats children from Mexico.”
In the days ahead, it will be essential for Obama administration officials and legislators alike to remember why this architecture was crafted in the first place. These children are in situations of extraordinary vulnerability, and they have survived a profoundly dangerous journey over thousands of miles to reach the border. And yet, they are doubly vulnerable in that they lack knowledge of both the intricacies of U.S. immigration and asylum law and their right to international legal protection. Even more egregious is the fact that they cannot be adequately made aware of such rights if they are processed immediately upon apprehension by U.S. Customs and Border Protection without being provided access to counsel. Ultimately, lawmakers and the wider American public must not permit the desire for efficiency in processing immigration cases to obscure the fundamental dignity of these children, nor their right to due process under both national and international law.