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Unaccompanied Alien Children: A Primer

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Monday, July 21, 2014

At the center of the current debate over the government’s response to the surge in unaccompanied minor children is the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), specifically, Section 235: Enhancing Efforts To Combat The Trafficking of Children. Many claim that the TVPRA ties the government’s hands in dealing with the number of minors being apprehended at the border because it prevents quick deportations for children from any country not bordering the United States, or “non-contiguous countries.”

Until the recent border crisis, the TVPRA had a non-controversial history of bipartisan agreement. While the 2008 version was the first to introduce specific language on the immigration treatment of “unaccompanied alien children” (UAC), the TVPRA dates back to 2000, when the original Trafficking Victims Protection Act (TVPA) was first enacted into law. The TVPRA was reauthorized in December 2008 by unanimous consent in the Senate and a voice vote in the House and was signed into law by President Bush.

Treatment of UAC under Current Law

The 2008 TVPRA, specifically Section 235, codified the now-scrutinized process for the treatment of all UAC in the United States and established “special rules” for children from “contiguous countries” (Mexico and Canada). Section 235 was based on previously proposed legislation that also passed the Senate by unanimous consent, the Unaccompanied Alien Child Protection Act of 2005 (UACPA). The new TVPRA provisions sought to address concerns that children apprehended were not being properly looked after or adequately screened to determine if they should not be returned to their country of origin. Similar criticisms during the 1980s and 90s against the former Immigration and Naturalization Services (INS) led to several lawsuits against the government that resulted in the Flores Agreement of 1997, which established regulations for the humane detention and treatment of UAC. Several years later, the Homeland Security Act of 2002 (HSA) again addressed the treatment of children and transferred responsibility for UAC from DHS to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services (HHS).

Defining Unaccompanied Alien Children. Upon apprehension, Border Patrol agents make the first determination of whether a child is “unaccompanied.” HSA defined the term unaccompanied alien child to mean a child who has no lawful immigration status in the United States; has not attained 18 years of age;1 and has no parent or legal guardian in the United States or available to provide care.2 Although many of the children may already have family inside of the United States, current practice by DHS classifies children as unaccompanied “if neither a parent or legal guardian (with a court-order to that effect) is with the juvenile at the time of apprehension, or within a geographical proximity” to care for the juvenile.3 According to interviews conducted with DHS officials in 2006, “if a parent or legal guardian is not present to provide care (or cannot be present within a short period of time) that child is technically considered unaccompanied and processed accordingly.”4

Under the TVPRA, DHS screens Mexican children within 48 hours of apprehension to determine if the child is a victim of trafficking or has a claim to asylum based on fear of persecution. If the child does not meet that criteria, they are eligible to agree to a voluntary return and speedy repatriation to Mexico. On the other hand, UAC from non-contiguous countries must be transferred to ORR within 72 hours of apprehension and are guaranteed an immigration court hearing.

Processing of UAC from Contiguous Countries

Step 1. Screening: DHS must screen children within 48 hours of apprehension to determine if the child is from a contiguous country, a trafficking victim or has a claim to asylum. Specifically, DHS will use the following criteria to determine its next steps:

  • Child has not been a victim of severe trafficking;
  • No evidence that the child is at risk of being trafficked upon return;
  • No credible fear persecution upon returning; and
  • Child is able to make an independent decision to withdraw an application for admission to the United States, known as voluntary return.

Step 2. Determination: If the child meets the criteria, he or she is eligible for voluntary return and can be returned to their country of nationality. If the child does not meet the criteria, he or she will be immediately transferred to ORR and put in formal removal proceedings.

Step 3. Repatriation: The State Department must ensure safe repatriation of UAC into their country of nationality through agreements with contiguous countries. At minimum, agreements must provide that children are returned to appropriate government or welfare officials and returned during daylight hours.

Processing of UAC from Other Countries

All UAC are placed in formal removal proceedings and appear in immigration court. Their care and custody, including responsibility for their detention or placement with family or sponsors while their immigration cases are processed, is the responsibility of HHS. The TVPRA lists the following steps and protections for UAC post-apprehension:

  • Notification. HHS must be notified within 48 hours upon the apprehension of a UAC.
  • Transfer. Except in the case of “exceptional circumstances,” UAC should be transferred to HHS no later than 72 hours after the child is determined to be unaccompanied.
  • Safe Placement. UAC must be promptly placed in the “least restrictive setting possible” while awaiting court hearing. (Usually this means placement with a parent, relative or other sponsor in the United States. If no sponsor can be found, ORR retains custody, which may mean placement in shelter or foster home).
  • Suitability Assessment. The child may not be placed until HHS determines that the proposed sponsor is capable of providing for the child’s physical and mental wellbeing. At minimum, they are required to verify the custodian’s identity and relationship to the child.
  • Legal Orientation. HHS must work with the Executive Office for Immigration Review (EOIR) to ensure that custodians receive legal orientation presentations.
  • Access to Counsel. HHS must try to ensure that UAC have access to pro bono legal counsel.
  • Child Advocate. UAC should be provided access to an advocate.

The Challenge

As noted above, except for UAC from Mexico or Canada, UAC are placed in formal removal proceedings and appear in immigration court. At the same time, ORR must find the least restrictive setting possible for UAC while they wait for their immigration case to be processed. Immigration processes can take can take months or even years due to court backlogs. According to the Transactional Records Clearinghouse (TRAC), the total number of immigration cases in the backlog reached 375,000 in June 2014, including 41,640 minors who are waiting for their court date.5 TRAC also estimates the average wait time for all cases (not just for children) to be 587 days.

Since most of the children arriving at the southern border are from Honduras, Guatemala, and El Salvador, the children cannot be quickly screened and sent back through voluntary return when no fear of trafficking or persecution exists. When the 2008 TVPRA was enacted, only about 3,300 UAC were being apprehended from Honduras, Guatemala, and El Salvador; so far in FY 2014, nearly 44,000 UAC from those three nations have been apprehended.6 The unprecedented number of children have strained government’s ability to house, place or process them in accordance with TVPRA provisions without further resources, emergency discretionary fixes, or legislative changes.

Administrative Fixes and Proposed Legislation

Administration. President Obama has submitted an emergency supplemental request to Congress, asking for $3.7 billion to manage the crisis at the border with further resources. In an earlier letter to Congress, the White House also asked for “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.” It remains unclear what specific “authority” the White House is asking for. While the president has suggested that he would be open to revisiting the TVPRA, Secretary Jeh Johnson testified at a hearing before the Senate Judiciary Committee that he believes the crisis could be managed without permanently changing the law. The Department of Justice has also taken steps to re-prioritize its dockets and resources in order to focus on the recent border crossers.

Some questions have arisen around whether the current law allows DHS the flexibility to process children expeditiously through the “exceptional circumstances” exception in the “transfer” step for apprehended UAC. However, the law itself does not elaborate on what those “circumstances” could be. Some have proposed that DHS, or other relevant agencies who execute the law, procedurally define “exceptional circumstances” in order to allow the government the flexibility to manage unanticipated waves of immigrants. A high number of children in a single month or year that exceeds a specified limit set according to DHS or HHS resources, for example, could trigger “exceptional circumstances,” and set emergency procedures that would allow DHS to quickly process and return UAC. So far, none of the legislative proposals have tried to define or build upon this particular tool.

Congress. In response to the president’s requests, several members of Congress have begun to introduce legislation to amend the 2008 TVPRA in order to be able to treat children from Central America similarly to Mexican children. Below are summaries of legislation introduced:

Senator John Cornyn (R-TX) and Representative Henry Cuellar (D-TX) – Humane Act

  • All UAC would be treated equally under the TVPRA.
  • Instead of being put in formal removal proceedings, children that do not meet the criteria during initial screening are put in a new form of removal: “Expedited Due Process and Screening for Unaccompanied Alien Children.” Under this new removal process, UAC will make their case before an immigration judge within 7 days of undergoing initial screening. Judges will then have 72 hours to decide on the case.
  • UAC must remain in government custody and cannot be turned over to a sponsor before their court hearing. Children who succeed in their claim will be allowed to remain in the United States in the custody of a sponsor while they pursue legal remedies.
  • HHS will have to run background checks on any person taking custody of a UAC.
  • Keeps current law in place requiring HHS to make all efforts to provide pro bono legal counsel and authorizes up to 40 new immigration judges.

Representative Matt Salmon (R-AZ) – Expedited Family Reunification Act of 2014

  • All UAC would be treated equally under the TVPRA. Specifically, legislation would remove any distinction between contiguous or “non-contiguous” nations, allowing for all UAC to be processed as Mexican children are now and be subject to immediate voluntary return.

Senators Jeff Flake (R-AZ) and John McCain (R-AZ) – CREST Act

  • All UAC would be treated equally under the TVPRA. Children with no claim to asylum will be put in Expedited Removal proceedings. Requires court hearings within 30 days.
  • Requires mandatory detention or use of alternatives to detention (such as ankle bracelets) to ensure individuals waiting for court dates actually appear to court.
  • Adds 100 temporary immigration judges and asylum officers.
  • Increase number of refugee visas by 5,000 for each of El Salvador, Honduras and Guatemala
  • Condition foreign aid on countries’ efforts to deter smuggling of children to U.S.

Representative John Carter (R-TX) – Protection of Children Act

  • All UAC would be treated equally under the TVPRA. Children with potential claims to asylum after initial screening must have a court hearing within 14 days and remain in government custody (up to 30 days).
  • Government must investigate the immigration status of any sponsor it placed children with since June 15, 2012.

Representatives Bob Goodlatte (R-VA) and Jason Chaffetz (R-UT) – Asylum Reform and Border Protection Act of 2014

  • All UAC will be put under Expedited Removal.
  • DHS will have 7 days (instead of 48 hours) to notify HHS that a UAC has been apprehended and has to transfer UAC to HHS after 30 days (instead of after 72 hours).
  • Changes definition of UAC. Children will not be considered unaccompanied if they have a sibling, aunt, uncle, grandparent, or cousin over 18 years of age available to provide care. Currently only children without a parent or legal guardian are considered unaccompanied.
  • Limits access to asylum by removing exceptions previously given to minors (like exception from being placed in a safe third country and applying within a year of arriving).
  • Adds 50 or more immigration judges over the next two years.

Senator Mike Johanns (R-NE) – UAC State Notification Act of 2014

  • Would add language to the TPVRA to ensure that DHS and HHS notify a state governor within 48 hours prior to the transfer of UAC in their custody to such state.

Representative Steve King (R-IA) – Resolution

  • Calls on southern border states to deploy National Guard troops to secure the border.

Senator Ted Cruz (R-TX) – bill

  • Bill seeks to stop the Deferred Action for Childhood Arrivals (DACA) program.

1 Upon apprehension, Border Patrol agents gather biographic information from the child and determine age based on multiple forms of evidence, including interview statements, documentation (such as birth certificates) or professional medical opinion based on radiographs (or x-rays), if necessary. via DHS: http://trac.syr.edu/immigration/library/P5048.pdf

2 Homeland Security Act of 2002: http://www.dhs.gov/xlibrary/assets/hr_5005_enr.pdf

3 Congressional Research Service (CRS): http://fas.org/sgp/crs/homesec/R43599.pdf; http://www.uscrirefugees.org/2010Website/5_Resources/5_3_For_Service_Providers/5_3_2_Working_with_Refugee_and_Immigrant_Children/CongressionalResearchService.pdf

4 CRS: http://www.ilw.com/immigrationdaily/news/2006,1107-crs.pdf

5 TRAC Email

6 U.S. Customs and Border Protection (CBP: http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children)

KEYWORDS: DEPARTMENT OF HEALTH AND HUMAN SERVICES, MEXICO, JEH JOHNSON, DEPARTMENT OF HOMELAND SECURITY, PRESIDENT GEORGE W. BUSH, TED CRUZ, STEVE KING, MIKE JOHANNS, EL SALVADOR, GUATEMALA, HONDURAS, HENRY CUELLAR, JOHN CORNYN, UNACCOMPANIED CHILDREN