Immigration Law for Unaccompanied Minor Children at the Border

The arrival of Unaccompanied Children (UCs) at the borders of the United States poses various challenges. 

These children seek asylum because of human trafficking, gang violence, and abuse in their home countries. Many come from Central America.

The United States has signed treaties that ensure refugees' protection and safe passage. Under these treaties, the U.S. government may not return someone to a country where they face persecution from their government. These treaties ensure that these vulnerable UCs receive the needed protection and support.

Immigration Protection for Immigrant Children

Congress signed the Trafficking Victims Protection Reauthorization Act (TVPA) in 2008. It requires that all unaccompanied minor children be screened to determine if they are eligible for protection in the U.S.

Ways unaccompanied children might be eligible to enter the U.S. include:

• Asylum is based on a fear of prosecution because of race, religion, nationality, political opinion, or membership in a particular social group. (An asylee is a refugee who receives a case determination in the United States instead of outside it.)
• Humanitarian relief as a Special Immigrant Juvenile Status (SIJS). The child must be under 21, unmarried, and subject to dependency orders by a juvenile court.
• Under a U visa as a victim of certain crimes who cooperated with law enforcement.
• Under a T visa as a victim of human trafficking, who would suffer hardship and severe harm if removed from the U.S.

The number of UCs in any given year varies but does appear to be increasing on average. In the fiscal year of 2022, a record number of children crossed the border. And this trend shows no signs of slowing down. Regardless of the number of UCs, the federal government handles the child welfare of unaccompanied migrant children in government custody. What happens to them when they enter the U.S.? To answer that question, it's important to note that U.S. presidents have a lot of discretion in enforcing immigration laws. The procedures for handling refugees and asylum seekers can change drastically according to the goals of whoever is currently in office.

For example, this happened during both the Trump and Biden administrations. And because U.S. immigration law is both complex and sometimes controversial, federal laws, immigration enforcement, and court challenges can occur more often than in other areas of U.S. law.

Unaccompanied Minor Children at the Southern Border

An unaccompanied non-citizen child is defined as follows:

• Someone under 18 years of age
• Who has no lawful immigration status
• Who has arrived in the U.S. without a parent or legal guardian

Children are considered UCs when apprehended or turned in at the border without a legal guardian or a parent. The U.S. Border Patrol or U.S. Customs and Border Protection (CBP) handles UCs at the border.

CBP screens Mexican and Canadian children. They may be placed in detention centers or CBP jails if no signs of trafficking or fear of persecution are reported.

The Office of Refugee Resettlement (ORR) takes custody of children from countries other than Mexico and Canada. Children in ORR-funded facilities are screened for human trafficking. ORR staff look for family members or sponsors with whom the child can live while awaiting their immigration court hearing.

Sometimes it is U.S. immigration policies that cause children to become unaccompanied. The Migrant Protection Protocols (MPP) and Title 42 are two such examples.

In recent years, providers offering services to UCs increased significantly. These providers assist children by addressing their needs as they navigate through the complexities of immigration. The U.S. Citizenship and Immigration Services (USCIS) plays an important part in determining the eligibility for immigration of these unaccompanied children.

Migrant Protection Protocols (MPP)

In 2018, the Trump administration's U.S. Department of Homeland Security (DHS) created the Migrant Protection Protocols (MPP). This immigration policy is also known as Remain in Mexico.

MPP allowed U.S. immigration officers to return refugees and asylum seekers who arrived in the U.S. by land through Mexico to be quickly returned to Mexico. There the refugees would remain while they awaited their immigration court proceedings.

This significantly increased the risk of family separation at the border. Minor children entered the U.S. in the custody of the Office of Refugee Resettlement. Their family members were returned to Mexico even if it was not their country of origin.

The Biden Administration tried to end the MPP program in June 2021. Texas and Missouri sued. They claimed the administration violated federal immigration law and the Administrative Procedure Act. A district court judge agreed with the states and ordered the program reinstated. The Biden administration appealed the ruling in Biden v. Texas, where the U.S. Supreme Court reversed the decision, allowing the administration to continue its plans to end the MPP.

Title 42

In March 2020, immigration services began using Title 42 of the U.S. Code to stop asylum seekers from requesting humanitarian protection. Title 42 allows federal health officials to prohibit migrants from entering the country to prevent spreading of contagious diseases. March 2020 was the beginning of the COVID-19 pandemic.

The Biden Administration long sought to end the use of Title 42, but it was heavily contested in federal court. Title 42 officially ended on May 11, 2023.

Flores Protections for Children in Immigration Detention

In 1997, a federal district court in California approved the Flores Settlement Agreement. It was a response to legal challenges about the living conditions of immigrant children in U.S. custody.

The Flores settlement required that:

• Immigration detention facilities for children must provide them with sanitary and temperature-controlled conditions, food, water, medical care, adequate ventilation, supervision, and contact with family.
• Children must not be held in custody with unrelated adults.
• Children must be released, without unnecessary delay, to parents or approved sponsors.
• Children who can't be released must be placed in the least restrictive setting appropriate for their needs and age.

In 2018, the Trump administration requested to modify the Flores settlement. The federal judge presiding over the settlement agreement, Judge Dolly Gee, denied their application. DHS/HHS then issued a notice of proposed rulemaking that would have ended many of the protections provided to children.

In September 2019, Judge Gee issued a permanent injunction. The Trump administration could not implement new regulations or withdraw from the Flores settlement.

In a case that continued for over two years, Customs and Border Patrol facilities finally agreed to provide detained minor children with access to::

• Hygiene supplies
• Age-appropriate meals
• Clothing
• Mattresses and blankets
• Showers

Minors apprehended with an adult family member were to remain with that family member while in custody unless it wasn't possible.

Information Sharing Between Agencies

In 2018 the Department of Homeland Security and the Department of Health and Human Services (HHS) began sharing information about people seeking reunification with an unaccompanied minor child. U.S. Immigration and Customs Enforcement (ICE) used this information to detain, arrest, and deport potential sponsors.

In March 2021, the Biden administration ended the agreement to share sponsor information.

Other confidential case management information shared between ORR and ICE resulted in children being denied asylum. Such was the case of Kevin Euceda, who entered ORR custody at age 17, seeking asylum. His therapy notes were used against him in his immigration proceedings.

Immigration Legal Services for Minor Children

One of the most significant challenges for unaccompanied children in the immigration system is their lack of access to legal services. Unaccompanied children do not have a right to court-appointed legal counsel.

Immigration judges hold immigration hearings with even very young children. Many do not speak English. Research has shown that without legal representation, fewer than 10% of children are allowed to remain in the U.S.

The challenge for children begins when they leave an ORR shelter and move to a sponsor or foster care. They must inform the court that they have moved. They must file a motion for a change of venue if their new home is in a different jurisdiction.

A sponsor or foster parent can do this for them if they know it needs to be done and understand the process. Failing to appear in immigration court for a hearing can result in immediate deportation. Most children who have attorneys show up in court. Only 33% of those who do not have help from an immigration lawyer do so.

The Biden administration created the Counsel for Children Initiative to increase the availability of legal counsel for unaccompanied alien children. It provides government-funded legal services in immigration cases for some children in select cities.

Nonprofit groups, including the Immigrant Justice Corps and the Immigrant Children Advocates Relief Effort in New York, are also working to increase representation.

The 2022 Los Angeles Declaration

In June 2022, the U.S., Canada, and 18 Central American and South American nations signed the Los Angeles Declaration. They committed to working together better to manage the movement of migrant and refugee populations. This is the first time many Western nations have agreed to address a widespread immigration problem.

The following countries signed the Los Angeles Declaration:

• Argentina
• Barbados
• Belize
• Brazil
• Canada
• Chile
• Colombia
• Costa Rica
• Ecuador
• El Salvador
• Guatemala
• Haiti
• Honduras
• Jamaica
• Mexico
• Panama
• Paraguay
• Peru
• United States
• Uruguay

The Los Angeles Declaration attempts to solve the root causes of migration and combat human trafficking.

It is, essentially, trying to reduce the number of unaccompanied minors seeking asylum.

Talk to an Immigration Attorney

The complexities of immigration law on Unaccompanied Children can be overwhelming. But you do not have to face these cases alone. There are immigration law attorneys that can assist you in handling your case.

FindLaw offers a list of experienced immigration lawyers near you. These lawyers can help you understand immigration law and tailor legal advice depending on your case. They can also assist unaccompanied children in finding the options available to them.