Initial encounters with law enforcement are consequential for migrants who seek to make a legal claim to remain in the U.S. — especially children. Unfortunately, however, these encounters are guided by outdated standards that often fail to address the unique vulnerability of children.
Legal guidelines
The process for receiving minors at the border depends on whether they arrive alone as an “unaccompanied alien child” (UAC) or as part of a family unit and whether or not they are a citizen of a contiguous country. The Homeland Security Act of 2002 divides responsibility for UACs between U.S. Customs and Border Protection (CBP), an agency under the Department of Homeland Security, and the Office of Refugee Resettlement (ORR), under the Department of Health and Human Services. CBP is responsible for the apprehension and initial processing of children, including making age determinations and separating children from adults who may pose a threat to their safety. ORR provides long-term care for minors, including detention and sponsor screening.
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 distinguishes between protections for children from contiguous countries — Mexico and Canada — and noncontiguous countries such as Guatemala, El Salvador, and Honduras. Children from noncontiguous countries are immediately placed in ORR custody. That agency assigns trained experts to screen them for signs of human trafficking and reviews potential asylum claims before immigration court proceedings begin.
On the other hand, children arriving from Mexico or Canada “are screened by CBP for trafficking and, if no signs of trafficking or fear of persecution are reported, may be summarily returned home pursuant to negotiated repatriation agreements.” This screening must take place within 48 hours of apprehension. If a child from a contiguous country displays signs of trafficking or could qualify for asylum, they are transferred to ORR to begin the same procedures as children from noncontiguous countries.
Sometimes, it’s not clear whether the migrant in question is a child or not. The Flores Settlement Agreement — a court decree from 1997 — establishes the “reasonable person” test in making age determinations for a migrant who claims to be a minor but lacks documentation relating to their date of birth. It states, “If a reasonable person would conclude that an alien detained [by DHS] is an adult despite his claims to be a minor, the [DHS] shall treat the person as an adult for all purposes, including confinement and release on bond or recognizance.” These decisions are often left in the hands of CBP officers.
Issues with current procedures
The overarching issue with the current practices for apprehending child migrants is that they assign CBP agents unilateral authority to make decisions about family separations, age determinations, and repatriation of children without proper training.
Current apprehension procedures allow CBP agents broad discretion to separate family units. In 2018, the Trump administration implemented the Zero Tolerance program, resulting in over 3,000 families separated in just weeks. Though the practice was later terminated, CBP agents continue to abuse the broad discretion afforded to them to separate families based on flimsy claims of criminal conduct or mistreatment by adults. These separations cause immense trauma to family members; what’s more, DHS does not have the capability to reunite families who have been separated effectively.
Furthermore, where a migrant child is placed — adult detention or ORR custody — largely depends on the age determination CBP officers make. If there is a question, officers can request a medical exam to estimate a migrant’s age. However, medical exams are not necessarily conclusive as they often cannot accurately account for “ethnicity, nutritional status, disease, and developmental history.” Child welfare experts, in contrast, can use medical exams in conjunction with cultural and biological factors to make a more accurate assessment. Allowing officers who do not have the necessary experience to make these initial age determinations risks subjecting minors to danger in adult detention facilities.
And finally, the divergent processes for children from contiguous and noncontiguous countries leave Mexican and Canadian children especially vulnerable to being returned to dangerous situations at home. CBP officers do not have adequate training or experience in screening to determine if a child is eligible for asylum. Young children under the age of 14, who DHS has determined are incapable of consenting to voluntary repatriation, are frequently mistreated under the current process. The Government Accountability Office found that from fiscal year 2009 to 2014, “CBP repatriated about 93 percent of Mexican UAC under the age of 14.” Additionally, a 2020 study found that CBP agents frequently violate screening protocols under the Trafficking Victims Protection Reauthorization Act.
Proposed solutions
Multiple organizations have called for an overhauled system for apprehending migrant children. The American Immigration Council has previously called for “child welfare screening to replace or augment Border Patrol screening” for migrant children from contiguous countries. KIND has recommended that DHS engage with nongovernmental organizations to establish a humanitarian reception model. They cite successful collaborations, including the American Red Cross assisting at the U.S-Mexico border and the collaborative work to help Afghan refugees. Human Rights Watch, meanwhile, recommends that state-licensed professionals be responsible for the entire screening process and suggests that CBP should never be responsible for family separation determinations.
Some suggest that expecting CBP agents to act as child welfare experts in the discharge of their law enforcement responsibilities could be detrimental to the work of the officers and the health of the children. For example, researchers from the University of Arizona state, “tasking CBP agents with responsibility for the well-being of Mexican UAC, without oversight or collaboration of child welfare experts at the border, may be at odds with its responsibility for apprehending and removing ‘illegal aliens’ as well as interdicting contraband, or CBP agents may treat these responsibilities as incompatible.” These researchers suggest that all minors, regardless of origin country, should be placed in screening processes overseen by U.S. Citizenship and Immigration Services (USCIS) — the DHS agency that handles visa requests — and provided a hearing before an immigration judge.
Employing child welfare experts at the border provides a long-term solution to border encounters. CBP officers should be focused on law enforcement activities, not duplicating efforts by training to be child welfare experts. Instead, we should hire experts to work alongside CBP officers to ensure the safety and care of children from the first encounter. Additionally, USCIS officials should be responsible for all asylum screenings for UACs to ensure uniform procedures and accurate determinations, and all children should have an opportunity to see an immigration judge.
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