A Note on Unaccompanied Immigrant Children
UC Davis Law Student Janet Kim reminds us of the continuing problem of “unaccompanied immigrant children” migrating to the United States:
Unaccompanied juvenile immigrants come to the United States from a number of dire situations ranging from civil war and forced labor to the sex trade and forced soldier recruitment, to severe poverty. Children arrive in the U.S. without guardians or parents, perhaps after having been separated from family during the migration, or sent by their family. The average age of an unaccompanied minor is fifteen years old. Since 2001, U.S. Customs and Border Protection (CBP) the number of unauthorized, accompanied and unaccompanied, juvenile apprehensions exceeded 86,000 annually. See Haddal, Chad C, Unaccompanied Alien Children: Policies and Issues (Congressional Research Service 2007). Approximately 4 of 5 of these children are Mexican nationals, a majority of who are voluntarily returned. Approximately 85% of unaccompanied minors in Office of Refugee Removal (ORR) custody are from El Salvador, Honduras, and Guatemala. See id. at 28.
The United States is one of the few remaining countries in the world that continues to detain children. In 2002, INS had 500 youths in its custody each day, but due to limited detention space, many are sent to juvenile centers or even adult jails. See Michael Welch, Detained: Immigration Laws and Expanding I.N.S. Jail Complex 20 (2002). Human rights organizations have harshly criticized U.S. policy for detaining children. Most other countries follow the guidelines of the Office of the United Nations High Commissioner for Refugees that suggest child welfare programs as alternatives to incarceration. See Carolyn J. Seugling, Toward a Comprehensive Response to the Transnational Migration of Unaccompanied Minors in the United States, 37 Vand. J. Transnat’l L. 861, 870 (2004). The fight for these children culminated into the Flores v. Reno settlement agreement in 1996 that established the first uniform standards for the care and treatment of immigrant minors in government custody. See Flores Settlement Agreement, Flores v. Reno, Case No. CV 85-4544-RJK (C.D. Cal. 1996). However, since the agreement from 13 years ago, there have been persistent violations of its provisions. These violations include unnecessary and excessive secure confinement of children, commingling of non-delinquent juveniles with delinquent juveniles, denying children adequate education, and failing to provide adequate explanation of legal proceedings to the children.
The 1989 Convention on the Rights of the Child (CRC) is a worldwide effort to mandate general standards of care for children. See Lara Yoder Nafziger, Protection or Persecution?: The Detention of Unaccompanied Immigrant Children in the United States, 28 Hamline J. Pub. L. & Pol’y 357, 377 (2006). The CRC addresses the need for the State to protect children from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.” United National Convention on the Rights of the Child, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (Nov. 20, 1989). The CRC provides specific guidelines for the detention of child. Only after six years of the establishment of the CRC, the United States signed the agreement, however, the United States has yet to ratify the Convention. See Carolyn J. Seugling, Toward a Comprehensive Response to the Transnational Migration of Unaccompanied Minors in the United States, 37 Vand. J. Transnat’l L. 861, 894 (2004). If the U.S. government ratified the Convention, these guidelines would likely improve the conditions and decrease the number of youth in immigration detention.