Week 20: Disappearance of child in custody exposes flawed system for minors
Immigration news, in context.
This is the twentieth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we dig into a new report about a migrant teenager who disappeared into the government’s shelter system for unaccompanied minors.
In Under the Radar, we discuss a new ICE detention center in California and Mick Mulvaney’s comments that the White House wants “more legal immigrants.”
In Next Destination, we examine whether the administration is phasing out the Remain in Mexico policy.
The Big Picture
The news: A new report by Aura Bogado at Reveal from the Center for Investigative Reporting details a Honduran girl’s disappearance into the shelter system for unaccompanied minors, where she spent over six years despite having U.S.-based family willing to take her in.
What’s happening?
The case of this girl is about as extreme as anyone has ever seen, but it illustrates the dangers faced by minors who enter through the maws of the Unaccompanied Alien Children (UAC) program at the Office of Refugee Resettlement (ORR) under the Department of Health and Human Services (HHS). (One undeniable facet of immigration policy is that acronyms abound.)
Unaccompanied minors are defined in statute as a child who “(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; (C) and with respect to whom (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.”
(C)(ii) has enabled instances of family separation: a child may indeed have a parent or legal guardian in the United States but the government may deem them unable to provide care if, for example, they’ve been taken into criminal custody — the basis for most separations under the now-infamous zero tolerance policy of 2018.
Since the law also specifies that guardians must be a parent or legal guardian, CBP doesn’t necessarily consider other non-parent family members to qualify, leading to situations like children being separated from aunts who raised them. Parents sometimes are also deemed unfit to care for their children and separated from them based on hazy determinations by CBP that they present a danger to the child in some way.
Most unaccompanied minors are transferred into ORR custody after having been detained by CBP at or near the border, though some are also transferred after being arrested by ICE in the interior of the country. Some are never transferred at all. Nationals and residents contiguous countries (Mexico and Canada) can be directly returned by CBP if agents determine that the child is not a victim of or in danger of human trafficking; does not express a fear of return; and is capable of making an independent decision. Unlike adults, unaccompanied minors are not subject to expedited removal, and these returns are not counted as deportations but rather voluntary returns. When children go through removal proceedings and lose, they are transferred back into ICE custody for deportation.
All custody of unaccompanied minors is governed not just by statute and federal regulations but also the Flores settlement, a landmark 1997 court order that further defined and clarified the protections afforded to unaccompanied minors. Among other provisions, Flores requires that minors be held in “safe and sanitary” conditions and apart from adults until they can be transferred to ORR custody, which is supposed to occur after no longer than 20 days in the custody of any other agency. (This has not always happened as ordered.) Despite multiple Trump administration attempts to roll back these protections, they remain in place.
On paper, the system is designed to be much more supportive and less restrictive than the one for adults. Beyond the Flores stipulations, unaccompanied minors are statutorily guaranteed the right to be placed in “the least restrictive setting” possible and are appointed a child advocate whose job it is to push for their best interests. ORR is obligated to ensure “to the greatest extent practicable” that they have legal representation. (As opposed to the criminal context, there is no right to an attorney in immigration court.)
In terms of placement, Flores establishes an order of preference as follows:
a parent
a legal guardian
an adult relative
an adult individual or entity designated by the child’s parent or legal guardian
a licensed program willing to accept legal custody
an adult or entity approved by ORR.
ORR is mandated to try to find sponsors in the United States and attempt to place children with them, provided that they undergo a background check and an evaluation of their fitness to receive the child, which includes a search of criminal records and a determination that the relatives or other potential guardians have the space and financial resources to care for them.
In the meantime, ORR relies on a network of about 170 state-licensed shelters in over 20 states to hold children and putatively provide some education, care, and guidance. Most are sent to states that already have robust shelter state shelter systems, like New York. In addition, a foster care system is in place for long-term placements where sponsors supposedly cannot be found, consisting of unrelated families that similarly go through background checks to host unaccompanied minors. This custody in shelters and foster care is technically speaking not detention, though children necessarily permitted to leave freely either. In cases where they do, local authorities are called to retrieve them, but the children have broken no laws. Children who turn 18 while in ORR care can be remanded to ICE for adult detention, though they can also be released on their own recognizance.
From an immigration court perspective, unaccompanied minors are supposed to enjoy special protections. As mentioned before, a greater effort is made to secure a lawyer, and they are exempt from some asylum-related limitations like a one-year window to apply. They also have access to the Special Immigrant Juvenile (SIJ) program, which provides a path to residency for applicants under 21 years of age who have been abused, neglected, or abandoned, as ruled by a state juvenile court, and generally are seen as more likely to secure protections than adults.
In practice, all of these protections can be pretty flimsy. Most children ultimately don’t receive legal representation. They can be held in CBP custody far longer than is allowed and without proper medical care, resulting in the deaths of six children since September 2018. The state shelter facilities where they are placed are rife with abuse and neglect, including child predators and the medically dubious drugging of minors. Lax practices have led to children being placed in foster homes where they’ve been mistreated. Temporary ‘influx’ shelters, which are not state-licensed and supposed to be for emergency purposes, have held thousands of minors in deplorable conditions. A new policy of sharing sponsor application data with ICE has led to the arrests of hundreds of potential sponsors, leaving children languishing in custody for longer and dissuading others from coming forward. The government has attempted to interfere with SIJ adjudications. Notes from children’s therapy sessions are being used against them by ICE in court.
And, as the Reveal report demonstrates, sometimes nothing specific has to even happen. Sponsors and children can be doing everything right, but they can still indefinitely disappear into the system.
How we got here
The girl and her relatives arrived in the U.S. in 2013, just as the number of unaccompanied children migrating to the U.S. from Central America was climbing. (As noted above, though the girl traveled with her brother and an adult relative, she was legally classified as “unaccompanied” because she wasn’t traveling with a legal guardian.) The number of new arrivals reached crisis levels in fiscal 2014, fueled by violence and instability in Honduras, El Salvador, and Guatemala. Many of the unaccompanied minors were teenage boys who were starting to be recruited for gangs — or teenage girls who were starting to face harassment and threats of sexual abuse from gang members — and fled as a result.
Several regulations, including the 1997 Flores Settlement agreement and the Trafficking Victims Protection Act (and subsequent reauthorizations) outline how the federal government is supposed to treat migrant children in its custody.
Flores, a court settlement resulting from a class-action lawsuit regarding the detention of unaccompanied migrant children, stipulates that children must be held in the “least restrictive setting possible.” The settlement came after a years-long legal battle that began in 1985 when Jenny Lisette Flores, a 15-year-old Salvadoran immigrant, filed a class-action lawsuit after being held in an adult detention facility by the Immigration and Naturalization Service. (INS was the precursor to DHS and its component agencies; it was dismantled and replaced with the immigration system we have today in 2003.) After a series of decisions and appeals, a federal judge in California issued a consent decree in 1997 — commonly referred to as the Flores agreement — which is in place to this day.
Flores applied to “all minors who are detained in the legal custody of the INS.” After the agency was phased out, its stipulations applied to both children detained with their families in ICE and CBP facilities and to unaccompanied minors in shelters operated by ORR.
Case workers hired by the shelters — which in turn are run by nonprofits contracted by ORR — are supposed to help the government coordinate the reunification process by helping identify the children’s sponsors. It’s unclear what went wrong in this particular case: Reveal reports that ORR had identified the girl’s grandmother as a sponsor for the girl and her grandmother before abruptly ceasing all contact. It’s also unclear how often this kind of thing happens.
In 2015, when the girl in Reveal’s story had already been in ORR custody for two years, the federal judge who oversees Flores ruled that the terms of the consent decree apply to unaccompanied minors and children detained with their families alike. Reaffirming the position that the government should release migrant children without unnecessary delay, Judge Dolly Gee ruled that minors can’t be held in custody for more than 20 days.
ORR shelters aren’t designed for long-term care, since many children are released after a month or two in custody. There are structured hours for learning and outdoor recreation, but the educational programs offered by most shelters are far below what you’d find at any public school. As the Reveal story details, a number of policies intended on paper to protect the children, like a ban on all forms of physical contact, can instead lead to psychological and behavioral problems for the children — especially for those who are very young or, in the girl’s case, who spend their formative years in custody.
Despite Gee’s 2015 ruling, children often spent more than 20 days in ORR custody under the Obama administration, and the length of time children spent in ORR shelters skyrocketed under Trump, reaching an average of 90 days before dropping again to around 40. Child welfare advocates have said these figures only include children who have been released, meaning the actual time children spend in ORR custody is, on average, much higher.
The fundamental issue Reveal’s reporting raises is how many more children have spent months or years in ORR shelters with no prospect of release on the horizon; the story suggests we may never know.
What’s next?
There’s not a clear solution to the massive flaws in the system. The ORR shelter network is a massive, decentralized structure made up of independent entities that are supposed to be fully overseen by an understaffed central bureaucracy. These facilities are state-licensed, but by and large the states see it as the federal government’s responsibility to investigate and address complaints involving the unaccompanied minor population. Children’s movement from shelter to shelter throughout the system makes it difficult for their own representatives and potential sponsors to track how they are and how they’re doing.
It’s not a system that draws widespread public note because it operates largely out of view. During the 2018 family separation crisis, many New Yorkers were shocked to learn that separated children were being housed in New York City, which was home to a branch of the largest shelter provider in the country. There is an obvious argument to be made for the preservation of confidentiality with regards to vulnerable minors, but the flip side is that little public information allows for little public oversight.
Not all of this is ORR’s fault directly. The failure to reunify separated families as required by a federal court order was largely due to flawed or nonexistent record-keeping by CBP, which itself continues to hold minors in unsanitary conditions, risking more deaths.
For its part, the Trump administration will probably continue to try to roll back Flores and find other ways to deny protections to minors, interfere with their release, and go after their potential sponsors. It’s not clear that his political opponents have much of a plan for this. Some legislation has been introduced in the House that would improve record-keeping and mandate more inspections of shelters, but the problem will probably continue to fester until there’s a more unified strategy.
Under the Radar
The GEO Group is expanding its ICE detention facility in Adelanto, California
The city of Adelanto, California voted this week to allow the GEO Group, one of the largest private prison companies in the country, to expand, the Desert Sun reports. GEO currently operates a 1,940-bed detention center in the city and is planning on converting a nearby prison into an annex that can house an additional 750 people.
The expansion is notable because Congress has repeatedly declined to give the Trump administration funding for additional ICE beds — the spending bill passed in December 2019 didn’t allocate funds for additional ICE beds, but it did say the administration could increase the number of detainees if the number of immigrants arriving at the border increases. But border apprehensions have been steadily declining over the past eight months. According to the most recent figures, Customs and Border Protection apprehended around 29,200 migrants at the border in January — an 11% reduction from the previous month and a 39% decrease from January 2019.
The administration is also asking Congress to increase ICE’s budget so the agency can detain an additional 15,000 people, Axios reports, as well as the funds to hire 4,600 new ICE agents.
Read more:
Adelanto approves GEO plan to expand capacity at California immigration detention center — The Desert Sun
Trump's budget proposal requests "wildly large" ICE funding — Axios
White House chief of staff claims the Trump administration “needs” more immigrants
At a private meeting in England, acting White House chief of staff Mick Mulvaney said the U.S. desperately needs more immigrants who come in a “legal fashion,” according to audio obtained by the Washington Post. There’s just one problem with that: The administration’s own policies, many of which have targeted legal immigration.
The Trump administration recently banned nationals of four countries — Nigeria, Myanmar, Eritrea, and Kyrgyzstan — from obtaining any form of immigrant visa. Nationals of two additional countries, Sudan and Tanzania, no longer qualify for diversity visas. (We wrote about the ban a few weeks ago.)
The administration has also imposed a “public charge” rule denying visas and permanent residency to people it deems too reliant — or too potentially reliant — on social welfare programs like SNAP or Medicaid. It’s attempting to impose a rule that would deny visas to prospective immigrants who can’t prove they’d be able to pay for unsubsidized health insurance out of pocket, a move the Migration Policy Institute says could slash legal immigration by as much as 65%. The implementation of that rule has been temporarily blocked by a federal judge.
Trump has lowered the annual total number of refugees allowed to resettle in the U.S. year after year, while erecting additional hurdles to the application and resettlement processes. The refugee resettlement cap for FY2020 is just 18,000, an all-time low.
The Post suggests that Mulvaney’s comments indicate an internal clash between more traditional wings of the party and Stephen Miller, the White House’s most influential restrictionist. This may be true, but Trump has indicated he wants to make even more changes to the legal immigration system; in his 2020 State of the Union address, he called on Congress to replace the family-based visa system with “one based on merit” that would favor high-income immigrants.
Read more:
Mulvaney says U.S. is ‘desperate’ for more legal immigrants — The Washington Post
Week 18: Six countries added to the travel ban — BORDER/LINES
Week 17: SCOTUS allows public charge to go into effect — BORDER/LINES
Challenges to administration effort to require local consent for refugee admissions — BORDER/LINES
Week 4: New rules on health insurance for prospective immigrants — BORDER/LINES
Next Destination
Is the Trump administration phasing out Remain in Mexico?
Instead of requiring migrants to wait out their cases in Mexico under the Migrant Protection Protocols, the Trump administration is prioritizing alternate strategies, the Washington Post reports. According to the Post’s report, the Mexican Foreign Ministry said just 2,000 migrants were sent back as part of the MPP in January, compared to 12,000 in August.
Instead, the administration is increasingly putting migrants through the Prompt Asylum Claim Review, a program that seeks to adjudicate asylum claims in just 10 days and severely limits migrants’ access to legal representation. Sources told the Post that more than 700 Central American asylum seekers were deported under PACR in December alone. The Humanitarian Asylum Review Process, not mentioned in the Post’s report, operates similarly for Mexican asylum seekers. Under both programs, migrants remain in Customs and Border Protection custody while their cases are decided.
The administration is also sending Honduran and Salvadoran asylum seekers to Guatemala as part of its Asylum Cooperative Agreement with the country. The agreement allows the U.S. to deport asylum seekers to Guatemala, provided they’re not from there, and encourage them to apply for protections there instead. But Guatemala has a mostly nonexistent asylum system, and high rates violence mean that many Guatemalans continue to flee, making it a less than ideal safe haven for asylum seekers. Advocates say the Guatemalan government can hardly ensure protection to its own citizens, much less to asylum seekers from other countries, but the Trump administration has nonetheless ramped up deportations to the country under the ACA. The administration has signed similar asylum agreements with El Salvador and Honduras, though neither is in effect.
These developments suggest that the Trump administration is shifting its efforts to policies that more effectively prevent people from actually getting asylum. For all its faults, there have been a tiny handful of asylum grants on the MPP docket — though the administration has appealed many of them. PACR and HARP cut down on the grant rate by all but denying migrants’ access to the outside world, and the Guatemala agreement prevents them from seeking protections in the U.S. at all.
Some experts, including BuzzFeed News’ Hamed Aleaziz are skeptical that the administration is doing away with MPP altogether. These alternate strategies may be preferable while the number of people arriving at the border remains low — and, in fact, these policies are largely intended to serve as deterrents — but the administration will likely keep MPP active in the event of another surge in arrivals. As we’ve written before, Remain in Mexico is one of many tools the administration is using to keep asylum seekers out. If the courts ultimately find PACR, HARP, the asylum cooperative agreements, the asylum ban, or any other Trump policy intended to deter asylum seekers from coming to the U.S., there are plenty of alternate policies the administration can ramp up instead.
Read more:
Remain in Mexico deportation asylum Guatemala — The Washington Post
The Homeland Security Inspector General Is Reviewing Two Controversial Trump Administration Immigration Programs — BuzzFeed News
Week 10: Removal of asylum seekers to Guatemala begins — BORDER/LINES
Week 2: Asylum agreements with El Salvador & Honduras — BORDER/LINES