Immigration Law for Unaccompanied Minor Children at the Border

Many unaccompanied children (UCs) coming to the U.S. seeking asylum are fleeing organized gang violence in their home countries in Central America. Children may also qualify to stay in the U.S. if they have been victims of human trafficking, certain other crimes, or have been abused or abandoned by their parents.

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

Immigration Protection for Immigrant Children

The Trafficking Victims Protection Reauthorization Act (TVPA) was signed by Congress 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 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 whose case is determined in the United States, rather than outside of 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.
• A U visa as a victim of certain crimes who cooperated with law enforcement.
• A T visa as a victim of human trafficking who would suffer hardship and severe harm if removed from the U.S.

It can be time-consuming to determine if immigrant children meet asylum eligibility requirements. The number of UCs vary from year to year. In the first five months of 2022, the number was less than 12,000, which is on track to be significantly less than 2021. Still, that is thousands of children. And regardless of the number of UCs, the federal government is responsible for the welfare of unaccompanied migrant children in government custody. What happens to them when they enter the U.S.?

In order to answer that question, it's important to note that U.S. Presidents have a lot of discretion in enforcing immigration law. The procedures for handling refugees and asylum seekers can therefore change drastically according to the goals of whoever is currently in office.

This has happened during both the Trump Administration and Biden Administration, for example. 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:

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

Children are determined to be UCs when they are apprehended or turn themselves in at the border to U.S. Border Patrol or U.S. Customs and Border Protection (CBP).

Mexican and Canadian children are screened by CBP. If no signs of trafficking or fear of persecution are reported, they may be placed in CBP jails and detention centers.

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.

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 US 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 greatly 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 was violating 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 asking for humanitarian protection. Title 42 allows federal health officials to prohibit migrants from entering the country in order to prevent the spread of a contagious disease. March 2020 was the beginning of the COVID-19 pandemic.

The Biden Administration sought to end the use of Title 42 but a Louisiana federal court blocked its action. It remains in force but the legal status of Title 42 itself is being challenged in the D.C. Circuit Court of Appeals.

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 that is appropriate for their needs and age.

In 2018, the Trump administration filed a request 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 feasible.

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 greatest 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 that it needs to be done and they understand the process. Failing to show up 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 assistance from an immigration lawyer do so.

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

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

Looking Forward

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 work together to better manage the movement of migrant and refugee populations. This is the first time so many western nations have agreed to address a now widespread immigration problem.

The Los Angeles Declaration was signed by Argentina, Barbados, Belize, Brazil, Canada, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Jamaica, Mexico, Panama, Paraguay, Peru, the United States, and Uruguay.

The agreements reached in this Declaration attempt to solve the root causes of migration as well as combat human trafficking. It is, essentially, trying to reduce the number of unaccompanied minors seeking asylum.

Talk to an Immigration Attorney

If you are concerned about the status of an unaccompanied minor, or are seeking legal representation in an immigration hearing, talk to an immigration law attorney in your area.