While immigration is often thought of as a question of the security of our borders, there is another dimension that is neglected: the importance of ensuring that initial encounters between immigrants seeking a legal pathway to residence, and law enforcement officials, are framed by the appropriate standards. This is especially true where it concerns children. According to the Niskanen Center, current legal guidelines are outdated and harmful to children.
The Legal Standard
Where immigrants over the age of 18 are subject to a different set of rules and requirements, such as getting an immigration physical exam, minors are treated to very different rules and requirements. According to the Homeland Security Act of 2002, the legal paths a child faces depend upon whether that child arrives as an “unaccompanied alien child” (UAC), or as part of a family, and whether they are from a neighboring country. UACs are governed by U.S. Custom and Border Protection (CBP) and Office of Refugee Resettlement (ORR) regulations. The CBP, which is under the Department of Homeland Security, apprehends and conducts the initial processing, which involves determining how old the children are, and seeing if there are any threats to that child’s life, such as an adult they need to be separated from. The ORR, which is part of the Department of Health and Human Services, manages the processes by which minors are put under some sort of long-term care.
According to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, children from neighboring countries, specifically, Mexico and Canada, are governed by different rules to children from countries the United States does not share a border with, such as Guatemala, El Salvador, and Honduras. Children from countries the United States does not share a border with, are put under the ORR’s custody, and screened to assess if they are victims of human trafficking, as part of their assylum processing; while those from Mexico or Canada are merely screened for trafficking, or fear of prosectuion, and then, sent back home if no signs of trafficking or fear of persection are found. If it’s not clear whether an immigrant is indeed a minor, then a reasonable person test is applied, in which an age determination is made according to what a reasonable person would guess is the age of that immigrant.
The Problem
The Niskanen Center argues that the CBP has broad discretion to make these decisions, without any real checks and balances. Families can be separated, ages determined, and children repatriated, even though the CBP’s agents do not have adequate training. The risk, then, is clear: a bad decision could do untold harm to a child, allowing a child to remain part of human trafficking, sending them back to where they fear persecution, separating children from loving family, among many other things. Many of these outcomes may be irreparable. For instance, in 2018, when the Trump Administration began a Zero Tolerance program, more than 3,000 families were separated within weeks. It is very difficult to believe that these extremely important and extremely sensitive decisions were made that fast, given the complaints about the department being overwhelmed. It suggests a very ad hoc decision making process. Although that program has ended, that has not limited the broad authority that CBP agents enjoy. That is extremely worrying. There needs to be better training, and more checks and balances, to prevent harms to children.
