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Immediate Solutions for Migrant Children

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David J. Bier

In 2021, the U.S. government is planning for 117,000 unaccompanied children crossing the border without their parents, the most on record.[1] Border Patrol stations are already jailing thousands of kids, and the agency is failing to transfer the vast majority to the Office of Refugee Resettlement (ORR) shelters within the legally required 72 hours.[2] Many children are trapped in jails for more than a week without showers, hygiene, social distancing, or other health care.[3] Fortunately, the new Biden administration acknowledges that the most pressing priority is the children’s safety and well-being.[4] Nonetheless, several policies that it inherited from prior administrations and has maintained harm children, cause family separation, and lead to unnecessary child detention.

Officially, the government acknowledges that the situation is not a “crisis” because children want asylum but rather because their well-being is endangered, yet it has so far prioritized deterring adults from entering over protecting children. It is trying to expel nearly all crossers back to Mexico immediately without any due process or screening for fear of return.[5] Since November 2020, the only categorical exception to expulsion has been for unaccompanied children traveling illegally without either parent.[6] The administration is trying to return all children crossing with parents to homelessness and danger in Mexico, leading many parents to send their children alone. Meanwhile, children who enter with nonparental adult family members are separated from them at the border and sent to ORR.

This humanitarian crisis is not simply the consequence of broader migration trends. The current border policies are causing many children to cross illegally and become “unaccompanied.” The government is prohibiting nearly all children—with or without parents—from applying for asylum at ports of entry, causing the share applying there to plummet from a high of 38 percent to 2 percent.[7] Moreover, since the government first started returning all families to Mexico, the number of Central American children who the Border Patrol deemed “unaccompanied” rose from one in five to two in three—a higher proportion than during the height of President Trump’s official “family separation” policy.[8] As the number of families returned to Mexico rose, many more parents made the painful decision to send the child across alone.

To prevent children from crossing alone, the government should immediately 1) suspend expulsions of all children and their parents or family members caring for them, 2) stop separating children without parents from nonparental adult family members and release them, and 3) restart accepting applications for asylum for families and children at ports of entry, work with Mexican authorities to direct them to ports, and parole them into the country to await processing of those applications. While these short-term solutions would save many children from harm as a direct consequence of U.S. policy at the border, the government should implement long-term policies that open legal immigration options to make traveling to the U.S. border unnecessary for families and children.[9]

Introduction to Unaccompanied Child Processing

The law defines an unaccompanied child as a person under the age of 18 who has no legal status and whose parent or legal guardian is not “available to provide care and physical custody.”[10] Under the Trafficking Victims Protection Reauthorization Act, Customs and Border Protection (CBP)—whether Border Patrol agents encountering children crossing illegally or CBP officers at ports of entry—are required to transfer unaccompanied children to ORR within 72 hours except in certain instances for children from Mexico or Canada.[11]

CBP processes the children and places them in temporary holding cells (or jails) at Border Patrol stations. CBP designed these cells to hold adults for brief periods, not children for long periods, and they have few showers, mats for beds, foil for sheets, and no dining areas.[12] Children are confined in close quarters. Despite the law and the inadequacy of its facilities, CBP is failing to make ORR transfers in the required time limit in about three quarters of all cases, citing a lack of ORR capacity to accept them.[13] As of March 14, there were 4,200 children in CBP border jails awaiting transfers—3,000 held for more than 3 days.[14] CBP held more than twice number of children than it did during the peak of the asylum crisis in June 2019.[15]

ORR operates or oversees shelters for unaccompanied children. The shelters have genuine beds, showers, dining areas, and other amenities that distinguish them from the border jails. ORR had space for about 14,000 children in mid-March, but it has reduced its intake to allow for greater social distancing during the COVID-19 pandemic. While understandable a few months ago, it was not justifiable to get keep thousands of children in CBP jails based on a threat of COVID-19 that poses a limited threat to children. On March 5, ORR finally announced that shelters could restore pre-COVID-19 capacity, but that was not achieved as of March 14 (Figure 1).[16]

Since January, the Biden administration has attempted to incorporate new influx ORR facilities to place children waiting in border cells first in Carrizo Springs, Texas to hold 700 children starting in February, and it was in the process of opening a Dallas convention center to hold about 3,000 children in mid-March.[17] Nearly 9,000 unaccompanied children were in ORR care in mid-March.[18]

ORR places unaccompanied children with sponsors in the United States who will care for them while their case is heard in the immigration courts. ORR takes an average of 42 days to release a child to a sponsor.[19] The Biden administration has attempted to speed up releases first by rescinding a policy that had allowed ORR to share information about sponsors with Immigration and Customs Enforcement, the agency in charge of immigrant removals.[20] After the agreement was signed in 2018, many families felt they could not contact ORR without risking deportation, and many children languished in custody.

In January 2021, 49 percent of unaccompanied child sponsors were other close adult relatives, and another 43 percent were parents of the children.[21] ORR’s extensive screening process for sponsors often delays release of children.[22] While this intrusive and time-consuming screening may be appropriate for non-parental sponsors to assure that children placed in appropriate settings, it is inappropriate for parents who have no legal obligation to vindicate their parental rights to the government. Instead, the burden is on the government to prove the parent’s unfitness.[23] By reversing the burden of proof, ORR causes family separation, delays the release of children, and leads to more children in border jails.

Once a parent establishes their relationship with the child—either in CBP or ORR care—the child should be released immediately in the absence of clear evidence of unfitness, which would remove children from government custody, reunite families, and free ORR bedspace. Yet so far, the new administration has not altered the screening and release process for parents, despite ORR losing lawsuits on behalf of individual children.[24] Simultaneously, CBP is refusing even to allow children to contact their parents while in Border Patrol facilities, and it has a general policy of not releasing children whose parent contacts them about their child notwithstanding the legal requirement to do so.[25]

Efforts to build more housing and facilitate faster processing of unaccompanied children are insufficient to cope with this recurring problem, and expelling unaccompanied children to Mexico would create a massive humanitarian disaster of homeless children abandoned by the U.S. government in violent cities in Mexico repeatedly recrossing the border hoping to find their families. Fortunately, the administration does have options to reduce the numbers of unaccompanied children by addressing the underlying legal reasons that so many children are crossing illegally and ending up alone in CBP and ORR facilities.

The three solutions presented below—ending expulsions of children entering with their family members, releasing children with extended family, and allowing asylum applications at ports of entry—are short-term answers to this problem, but they will solve the most pressing issues: illegal crossings that result in the inhumane treatment of children.

Suspend All Title 42 Expulsions

Much of the uptick in unaccompanied child crossings has come from children who have separated from their parents who were—or would have been—returned to Mexico by CBP. CBP started returning large numbers of families to Mexico in the summer of 2019, including all families to Mexico by the end of September 2019.[26] Initially, returns occurred under the Migrant Protection Protocols (MPP), which required asylum applicants to remain in Mexico to await their immigration court hearings north of the border. CBP would admit them only to have the government ferry them to hearings.

In March 2020, the government suspended MPP hearings indefinitely, leaving MPP participants stranded in Mexico,[27] and CBP instituted a new policy known as Title 42 expulsions for new arrivals.[28] The expulsion policy was based on a Centers for Disease Control (CDC) directive finding that the “introduction of persons” from Mexico would endanger the public health—only if the persons were noncitizens lacking prior travel authorization.[29] CBP controversially and possibly illegally took the authority to prevent the ”introduction” of persons to authorize “expelling” crossers already in the country.[30]

According to CDC officials, the Trump White House “forced” the CDC to issue the declarations over the objections of the CDC health experts who initially refused to do it.[31] More than 70 public health specialists at major hospitals, universities, and other institutions across the country wrote the Biden administration in January to state that the CDC declaration ”has no scientific basis.”[32] Nonetheless, the Biden CDC claimed in a February 2021 regulatory notice that the Trump CDC expulsion order was based on the “most current information” regarding COVID-19 and should largely remain in effect.[33] Currently, released migrants in Texas are testing positive at half the rate of Texans overall, represent less than 0.1 percent of total cases in Texas, and quarantine in shelters until their transmission risk subsides.[34]

For children and their parents, Title 42 and MPP had similar consequences. Both expose the family to protracted homelessness in often hazardous weather conditions in dangerous cities in Mexico. Parents who generally had jobs lined up in the United States could not find work south of the border,[35] and many expelled children lack basic necessities including spaces to bathe, infant formula, diapers, and other hygiene products. They endure exposure to severe weather conditions including extreme heat, subfreezing temperatures, and storms. Criminals preyed upon the homeless. The nonprofit Human Rights First catalogued reports of 1,544 crimes against migrants forced back into Mexico in just over 2 years, including dozens of kidnappings, extortions, robberies, rapes, and several murders.[36]

Given these threats, many parents chose to send their children to the United States alone. MPP had explicitly exempted unaccompanied minors who entered without their parents.[37] As a Physicians for Human Rights Report based on dozens of interviews with MPP participants puts it, ”Knowing that unaccompanied children are exempt from the policy, parents described the pain of making the difficult decision to send their child back across the border alone to pursue asylum in the United States.”[38] This choice was so common that one asylum camp gave it a name: ”La Separación.”[39]

As of January 1, 2021, the Office of Refugee Resettlement confirmed that 701 children in its care had previously been returned to Mexico under MPP—about 50 per month.[40] But at the same time, Border Patrol returned many other unaccompanied child crossers whom it had placed with their parents in MPP in Mexico, so they never ended up in ORR care.[41] The main effect of MPP on unaccompanied child crossings, however, was that newly arriving families (or those who had been waiting to enter at ports of entry) split up before they could be put in MPP.

As a direct consequence of MPP, the share of Central American children crossing without either parent rose from 20 percent in August 2019—the last month before all families were returned to Mexico under MPP—to 69 percent in March 2020 when Title 42 expulsions began (Figure 2). Because Title 42 initially applied to all unaccompanied children, the share of unaccompanied crossings plummeted in April and May. Once courts began to order the release of some unaccompanied children starting in June, the share crossing without parents—though not their absolute numbers—rebounded.[42] Finally, children won a broad court order in November 2020 that barred expulsions of nearly all unaccompanied children (except those currently in MPP),[43] a policy that the Biden administration made permanent despite an appeals court reversing it in late January.[44]

The effect of Title 42 expulsions of families can also be seen in how quickly the share of children crossing without parents declined once Border Patrol began to release some parents with young children in February 2021, falling from 67 percent of all children in January to 47 percent in February. According to CBP, the Mexican state of Tamaulipas across from the Rio Grande Valley sector in south Texas where most families cross began refusing to accept back some non-Mexican families with children aged 6,[45] citing a Mexican law effective in November that prohibits the detention of migrant children under the age of 18 and requires their placement in state-run shelters that had exceeded capacity.[46] CBP has said that Tamaulipas’s refusal led to the decision to release them.[47]

The practice has allowed more children to cross with their parents. In February, about 58 percent of children with parents were not expelled immediately to Mexico compared to 36 percent in January, 22 percent in December, 13 percent in November, and 9 percent in October.[48] Given this strongly positive effect on children, the administration should affirmatively exempt from Title 42 expulsion all children—unaccompanied or accompanied—as well as their guardians. Unfortunately, it has taken the opposite approach by trying to increase the homeless shelters in Tamaulipas, Mexico for families and flying other families to other Mexican states to force them back there.[49]

Release Unaccompanied Children With Nonparental Adult Family

A second group of “unaccompanied” children arrive at the border with adult family members who are not their parents. In longstanding policy that predates the Obama administration, CBP will separate the child from the relative to transfer them to ORR facilities, a policy that the Biden administration has continued even for very young children.[50] Under the Obama administration, the relative was often separately processed for asylum and released, which enabled them to act as a sponsor for the child and expedite their release, but since CBP implemented MPP and Title 42, agents usually expel the relative to Mexico where they lose all contact with the child and can no longer act as a sponsor, prolonging their detention.[51]

Family separation imposes severe psychological harms to children.[52] The Associated Press reported on one four-year-old child separated by CBP from her aunt in March 2021 who cried hysterically during a phone call with her mother but never spoke a word.[53] Government facilities where young children are placed alone also fail to protect them, leading to cases of physical and sexual abuse from both older kids and staff.[54] Separation can also imperil the child’s asylum case. The nonprofit Kids In Need of Defense, which represents migrant children in removal proceedings, notes, “Without the support and assistance of a parent or family member, children may be unable to provide detailed information or documentation that is necessary to prove their eligibility for asylum.”[55]

Prior to separating parents from their children in 2018, CBP had very inadequate mechanisms to track family separation,[56] and it appears that it still lacks any system for tracking separations of children from other adult relatives.[57] This makes quantifying the number of “unaccompanied” children who actually arrived with an adult family member difficult. However, during the initial rollout of Title 42, CBP decided to only expel back into Mexico unaccompanied children who were with an adult relative, while detaining the rest for expulsion to their home country.[58]

CBP eventually abandoned this practice, but it appears during this time that most ”unaccompanied” non-Mexican children were expelled to Mexico, implying that they came with an adult family member,[59] though many advocates believe that unaccompanied children were often expelled with unrelated adults.[60] In February 2021, 2,942 unaccompanied children (11 percent) were under the age of 12 and are very unlikely to have crossed alone,[61] but many older children also travel with adult extended relatives or adult siblings.

CBP officials state that the Trafficking Victims Protection Reauthorization Act (TVPRA) requires CBP to transfer children without a “parent or legal guardian” available to take custody of them in the United States to ORR custody within 72 hours.[62] But CBP has flexibility under the TVPRA to release these children in “exceptional circumstances” when transfer to ORR is impossible within the 72-hour limit, and it is in the best interest of the child.[63] CBP’s National Standards on Transport, Escort, Detention, and Search already permit agents to keep children with non-parental adult family members temporarily.[64]

Generally, CBP should not have to make decisions about releasing young children because it does not have child welfare specialists,[65] but Congress required CBP to hire professionals, and it has failed to do so. Moreover, CBP plans to allow some ORR officials into CBP facilities along the border in March 2021.[66] These ORR professionals should make assessments and order the release of unaccompanied children with extended family without having officially transferring them to ORR.

ORR officials could reasonably evaluate the children and relatives within 72 hours in CBP custody. Once a child is separated and transferred to ORR, releases take an average of 42 days to release children to a sponsor in the United States.[67] These length reviews are partly the result of changes that ORR made after it mistakenly released a small number of children to human traffickers in 2014, but the mistakes it made in those cases would not apply to releases from CBP facilities with family members. Unlike in those cases, ORR would be able to interview both the child and the adult in person, conduct background checks on the adult, and directly watch the child and adult interact.[68] Many crossers also carry with them documents—birth certificates and identification—that ORR could review.[69]

If the administration cares about protecting these children and expediting processing, it should immediately stop separating them from their family and release them.

Accept Asylum Applications From Children At Ports of Entry

The law allows anyone arriving in the United States to apply for asylum at any port of entry.[70] After using a series of policies to constrain applications at ports, CBP is now only admitting children—unaccompanied or otherwise—at legal crossing points known as ports of entry in very rare circumstances. In February 2021, CBP admitted just 2 percent of unaccompanied children and undocumented families at legal ports of entry along the southwest border. This compares to a peak of 38 percent in February 2018. In absolute terms, processing of these asylum seekers at ports is down 95 percent from its peak in October 2016 (Figure 3).

In the same ways as Title 42 or MPP, blocking access at ports of entry endangers children—many of whom are more than a thousand miles from their homes—by rendering them homeless in dangerous cities in Mexico. Given the unsustainable situation, many children and their families cross illegally, which exposes children and families to new and unnecessary dangers while burdening Border Patrol with tracking and processing families in remote areas.

CBP has a long history of turning back asylum seekers at the Mexican border. Two reports by the U.S. commission on International Religious Freedom found in 2005 and 2015 that CBP officers at land ports of entry have discouraged asylum applicants from applying at ports of entry, including by pushing them back into Mexico or failing to refer them for asylum credible fear interviews.[71] This informal practice developed into a formal policy of capping or ”metering” the number of asylum applicants accepted in San Diego in 2016.[72] This policy was introduced in response to a threefold increase in the number of undocumented crossers processed at ports of entry since 2012.[73] This trend had developed naturally with active discouragement from CBP.

In April 2018, as more asylum seekers arrived, CBP officially ordered metering across all ports of entry and deliberately lowered the cap to discourage migrant ”caravans” from applying for legal admission.[74] Metering caused thousands of people to line up at ports of entry unable to cross.[75] It also diverted much of the flow into illegal crossings, and the share of undocumented crossings at ports plummeted. In 2019, CBP expanded MPP to return families applying at ports to Mexico, which dissuaded many from applying.[76] In March 2020, after the CDC’s Title 42 declaration, CBP almost wholly stopped accepting any asylum applicants at ports of entry. Mexican immigration authorities are working with CBP to stop asylum seekers including unaccompanied children from reaching ports of entry.[77]

Illegal crossings pose new risks for children. Criminal enterprises control most illegal crossings, allowing them to extort potential crossers. Parents and children who attempt to swim without using a smuggler risk drowning. A father and his daughter died in the river after CBP refused to process their asylum applications at a port of entry in 2019.[78] Traffickers will often force migrants into overcrowded rafts that can flip in the Rio Grande River. In 2019, at least one infant died in this way.[79] Illegal crossings also can leave children and families stranded in remote locations. One 6-year-old girl died in 2019 after smugglers led them into the Arizona desert without sufficient water.[80] Arizona authorities found 227 bodies in 2020, the most on record.[81]

Even after they cross and enter Border Patrol custody, the remote locations can complicate efforts to obtain aid for them, contributing to six deaths of children in Border Patrol facilities in 2019.[82] Border Patrol jails often lack medical supplies and staffing, and agents have little training in identifying conditions.[83] Combined with overcrowding, children can go days without receiving proper care or health screenings, and in at least case in 2019, agents ignored a teenager’s deteriorating condition, and he died.[84]

Illegal crossings also pose logistical problems for Border Patrol. Unlike at ports of entry, agents cannot reliably predict places that asylum applicants will cross. They have to transport groups of sometimes hundreds of people in vans in some cases more than a hundred miles to stations for processing. If the stations fill up, they must decide whether to release them in areas where transportation is very limited. The entire chaotic process that results from an illegal crossing makes it impossible for families and unaccompanied children to arrange their own transportation or connect with their families, prolonging their detention. Unpredictable Border Patrol releases of families in 2019 also frustrates local communities trying to help released families who have no housing.

Unfortunately, the Biden administration has made no efforts to increase processing of asylum seekers at ports (Figure 3), and at least one report indicates that it plans to maintain metering long-term.[85] In order to control the situation, CBP should stop telling the Mexican immigration authorities to push asylum seekers away from ports and ask them to direct applicants toward the legal crossing points. CBP should prioritize asylum processing for families and children at ports. It should use expedited processing procedures similar to those used for Cubans processed under “wet foot, dry foot.” Prior to January 2017, CBP had allowed Cuban asylum seekers to receive “parole,” a legal status that CBP has unilateral discretion to provide. This process consisted of verifying the Cuban passport, fingerprinting, checking government databases, and issuing a parole document.[86] The process often took just 45 minutes with many Cubans being processed simultaneously.[87]

Paroled Cubans can eventually apply for permanent residence under the Cuban Adjustment Act.[88] This process should be reinstated for the thousands of Cubans now arriving at the border because it would free up asylum processing for other applicants. But CBP should also use the same parole process at ports for non-Cuban applicants who will need to apply for asylum. Like asylum applicants, parolees can receive employment authorization documents (EADs) shortly after their entry, and their legal entry and legal status would remove all other illegality from the crossing.

To quickly process asylum seeking families and children at land ports of entry may require additional staff. Fortunately, because it will help reduce the illegal flow, CBP should relocate Border Patrol agents to facilitate fingerprinting and initial intake. Many Border Patrol agents are already involved in asylum processing between ports of entry, and the process would largely be the same at ports. CBP has previously moved CBP officers from ports to Border Patrol stations to help process those crossing illegally,[89] but moving staff the other direction would facilitate more lawful entries and reduce illegality and chaos along the border. Once applicants pass through ports of entry, family members could prepare to arrange travel to other locations, freeing both ORR and CBP from having to house them or transfer them to the interior.

Even if the government revokes the parole status for non-Cubans once their asylum applications had been adjudicated, this is no different from the many nonimmigrants entering as tourists, students, and guest workers whose temporary statuses also expire. About 83 percent of families appear for immigration court hearings, a rate that rises to 97 percent when they are represented by attorneys.[90] This is comparable to the compliance rate for long-term nonimmigrant visa holders.[91] Regardless, parole at ports would reduce the burden on Border Patrol, protect children from severe harms in crossing illegally and detention, and restore order and legality to the system.

Conclusion: Long-Term Solutions Needed

The Biden administration has options to illegal entries by unaccompanied children. First, it should immediately rescind Title 42 to allow children to cross with their parents without fear of immediate expulsion and homelessness in Mexico. Second, it should stop separating “unaccompanied” children from extended family members like aunts, uncles, and grandparents and release them together to free up space for truly unaccompanied children. Third, it should restart processing asylum applicants—particularly families and unaccompanied children—at ports of entry to prevent illegal crossings and allow for efficient processing. CBP should reassign Border Patrol agents to assist in processing applicants at ports of entry.

The Biden administration also needs long-term solutions to address this flow of child migration, and it has intuitively grasped that the solution must be better legal immigration from abroad.[92] The administration has announced plans to expand the refugee program in Central America and issue parole documents to some children who have family in legal statuses in the United States under the Central American Minors (CAM) program.[93] Unfortunately, it has yet to implement either of these policies. It should prioritize doing so in a streamlined and simple manner.

In order to make CAM an effective alternative to illegal immigration for children, however, the administration must designate Central Americans in the United States as eligible for Temporary Protected Status, a legal status that the administration has the discretion to grant based on humanitarian concerns about returning someone to their home country.[94] Without doing so, very few Central Americans would have eligible sponsors.[95] The government also needs to address the flow of economic migrants by directing more guest worker visas to Central Americans. Congress granted it the authority to raise H-2B visa cap for seasonal nonagricultural jobs, but it has yet to issue any, despite unambiguous evidence that work visas reduce illegal immigration.[96]

The Biden administration has publicly committed to the right principle for addressing child migration—that is, the best interest of the child should supersede other concerns. Yet its policies have not lived up to this lofty principle. It needs to stop using policies intended to reduce migration of families and children and focus instead on policies intended to facilitate lawful migration. This is the best and most humane method to protect children and impose order at the border.

Endnotes


[11] CBP is required to transfer unaccompanied children to the Office of Refugee Resettlement (ORR) within 72 hours except in the case of a child from Mexico or Canada in which case a child who is not a severe trafficking victim and who has no fear of return may be returned pursuant to an agreement with the other country’s child welfare officials if the child is capable of making the decision to withdraw the application. 8 U.S.C. 1232(a)(2)

In practice, Mexican unaccompanied children are routinely expelled with little process.

Coulter, et al. “A Study and Analysis of the Treatment of Mexican Unaccompanied Minors by Customs and Border Protection,” Journal on Migration and Human Security, 2020, Vol. 8(2) 96-110.

[65] It should also not reclassify ”unaccompanied” children who are with other adult family as a child in a ”family unit” because doing so would eliminate several important legal protections that unaccompanied children have.



Source: https://www.cato.org/blog/immediate-solutions-migrant-children


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