Almost all of the children currently being held in custody along the Texas border are from Central America. This places them in a special legal category which is discussed below. The important thing to understand about this extremely complicated situation is that a law passed by Congress during the Bush administration in 2008 requires the Immigration Service to process the children in a very specific way.
The legal requirements which the government must follow in this situation started with a federal court case in 1997 (Flores v. Reno) which heavily criticized the way the Immigration Service treated unaccompanied children who were taken into custody either in the United States or attempting to enter the country. Due to this federal court decision, the Immigration Service implemented special custody and deportation proceedings for unaccompanied children regardless of where they came from.
At the same time, the international community was becoming alarmed at the substantial increase in human trafficking in general and trafficking in children in particular. Because of this growing threat to children worldwide, the Bush administration supported and Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). This statute created very specific processing requirements for the Immigration Service regarding undocumented, unaccompanied children apprehended at the border or in the U.S. The TVPRA also separated this class of children into two groups: those children from “contiguous countries” and those children from “non-contiguous countries”. In the situation we see today, since the children are from Central America, they fall into the category of “non-contiguous country” children.
At the end of this article we have included a chart which outlines the specific custody and processing requirements which the Immigration Service must follow for unaccompanied, undocumented children. As you can see from this chart, the children must be placed in the least restrictive setting that is in the best interest of the child first. Due to the tremendous number of children involved in this situation, it has become increasingly difficult to find places which are numerous and/or large enough to hold what may turn out to be close to 90,000 children in a secure, safe and otherwise suitable environment. All of this must be accomplished before deportation proceedings can be initiated.
Once the deportation proceedings are started for an individual child, the case is processed through the immigration courts. One of the problems which is certainly on the horizon is the fact that the immigration courts are already tremendously overburdened with “regular” deportation cases. In fact, many places in the country have backlogs of two years or more for the first deportation hearing. If we add in another 90,000 cases roughly at the same time, this problem will get much worse. This is one of the main reasons why President Obama and the Immigration Service have asked Congress for additional funding on an emergency basis to deal with this tremendous surge in deportation cases which is anticipated to start in the next several months.
While the unaccompanied children are in the U.S., which as we can see may be for two years or more, they must be adequately housed, fed and educated. Due to the tremendous cost involved in this, the president has also asked Congress to “fast track” the TVPRA by changing the legislation and also by allocating additional funds for more immigration judges and lawyers.
It is important to understand this situation is not only complicated but it is also one in which the particular immigration law concerning unaccompanied children actually makes the process of removing them from the U.S. much slower. The Immigration Service has no authority, and in fact is strictly prohibited, from simply rounding up these children and place them on a bus or plane and returning them to their country.
It is clear that there will be no “winners” in this tragic situation. However, what would be best for everyone is for Congress to cooperate with the President and the Immigration Service to provide additional funds to expedite the deportation proceedings which in turn will provide for the removal of these children as quickly and humanely as possible from the U.S.
Process for Unaccompanied
Alien Children
- A child is apprehended by either Border Patrol or Office of Field Operations
- The child will undergo initial processing at a Border Patrol Station or a port of entry.
- The child will be screened for UAC status (less than 18 and no available parent/legal guardian) and to determine if the child is a national of a contiguous country.
Non-contiguous:
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CBP notifies ICE and ORR. Within 72 hours of apprehension, the child is transferred by ICE to HHS/ORR custody.
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ORR ensures that the child be promptly placed in the least restrictive setting that is in the best interest of the child.
- ORR screens the child to determine whether:
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The child has been a victim of a severe form of trafficking in persons.
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There is credible evidence that the child is at risk if returned.
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Whether the child has a possible claim to asylum.
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- The child is placed in removal proceedings before an immigration judge pursuant to Immigration and Nationality Act §240.
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While proceedings are pending, the child is released to the custody of a family member or to an ORR shelter or foster home.
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If not eligible for any relief (SIJS, Asylum, T/U visa), the child is ordered removed and repatriated.
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Acronyms:
CBP: Customs and Border Protection
HHS: Health and Human Services Agency
ORR: Office of Refugee Resettlement (a division of HHS)
ICE: Immigration and Customs Enforcement
SIJS: Special Immigrant Juvenile Status