Children who arrive unaccompanied at the southern border of the US are being denied access to protections they should be afforded by law
Under a 2008 law, border officials are required to transfer unaccompanied migrant children who are not from Mexico or Canada to the US refugee agency known as the Office of Refugee Resettlement (“ORR”) within three days of their apprehension. Such children may not be processed through the fast-tracked deportation process known as “expedited removal” except in extraordinary circumstances.
Contrary to this provision however, children who now show up at the southern border without their parents or legal guardians are currently being summarily expelled on the basis of a public health order the Trump administration believes allows border officials to bypass asylum, immigration and anti-trafficking laws.
Immigration law dictates that once in the US, unaccompanied migrant minors must be connected with legal services providers and child advocates. Pursuant to the 1997 Flores Settlement Agreement (the “Flores Agreement”), minors must be detained in safe and sanitary facilities, and the government must make a continuing effort to release them to qualified sponsors. Further, their asylum applications should be decided by US Citizenship and Immigration Services rather than an immigration judge. Children who can prove they have been neglected, abandoned or abused by one or both parents also have other avenues for entry: they can request Special Immigrant Juvenile Status which eventually creates a pathway to citizenship.
The Trump administration has sought to limit or remove these protections arguing that they encourage unauthorised migration of children. The latest salvo from the administration has been the invocation of a 76-year old public health law on the grounds that it is necessary to block the entry of migrants, including children, who may be infected with coronavirus which could overwhelm the public health system at the border. Under an informal agreement between the US and Mexico, Mexican officials have agreed to receive Central American families and single adults expelled by the US under the public health order but not unaccompanied minors.
“The administration is using coronavirus and the pandemic as a cover for doing what it has always wanted to do, which was to close the border to children. There is no reason why unaccompanied children arriving at the border can’t be safely screened and transferred to ORR custody, where capacity is at an all-time low.”
Jennifer Nagda, the policy director at the Young Center for Immigrant Children’s Rights
Since the US borders were closed, border officials have expelled thousands of unauthorised migrants to Mexico or their home countries and denied most asylum-seekers the opportunity to request humanitarian protections created by Congress. In the last 11 days of March alone, officials expelled at least 299 unaccompanied children under the Centers for Disease Control and Prevention public health order. The numbers for April have not yet been released however the ORR received only 58 children from border officials in April, down from 1,852 children in March 2020.
Last month, a federal judge ruled that the US refugee agency cannot block the release of children with sponsors merely because they were formerly in Mexico with their families and have a pending case linked to the Remain in Mexico program, formally known as the Migrant Protection Protocols or MPP program.
Judge Dolly Gee of the US District Court in Los Angeles found that US Immigration and Customs Enforcement (“ICE”), which detains migrant families with children, and the ORR are both violating the Flores Agreement during the coronavirus pandemic. Judge Gee required both ICE and the ORR to “make every effort to promptly and safely” release any children in their custody with sponsors, are not a danger to themselves or others and are not flight risks.
