Immigration Detention of Children and its Consequences

October 4, 2023

Guest blogger: Camila Carrera, law student, University of San Francisco:

The welfare of children is one of the most important public policy issues that society faces every day, yet migrant children are not afforded the same protections as United States-born children. In March 2023, the Council on Foreign Relations (CFR) issued a report on the U.S. detention of child migrants, which highlighted the surge in the apprehension of unaccompanied children at the southern U.S. border. The pandemic saw a decrease in unaccompanied minors crossing the border but has since risen dramatically to more than 152,000 in 2022. This paper analyzes why children come alone to the United States and what they face once they arrive.

Factors Leading Children to Cross the Border

Unaccompanied children arriving at the U.S. border are largely from Central America, including Guatemala, Honduras, Mexico, and El Salvador. The factors that lead to their migration include violent crime, gang violence, gang recruitment, and severe economic disparities. While it is true that children are afforded some leniency in the immigration system once they are released, their ensuing journeys are far from easy, and their relief is limited. The report from CFR explains that there is little evidence that children flee to the United States because of lenient immigration laws. Rather, parents are forced to choose to gamble with their child’s safety between staying in their home country and facing nearly guaranteed violence and persecution or risking the same on their journey to the United States.

At times, the risk starts in the child’s home country. A study by the Texas Public Policy Foundation reports that social media, such as TikTok, Facebook, Instagram, Snapchat, and even video games have provided a sinister platform for traffickers to recruit children from anywhere with anonymity. Cartels are hiring minors to smuggle others because they are aware of the more lenient legal practices for children, while the children are promised enticing monetary awards without awareness of the consequences. In 2022, ABC15 News reported that Cartels actually make an astounding $13 billion a year smuggling people into the United States, not including drug money.

Journey to the United States

Children face the same perils adult immigrants face on their journey to the United States but without adult protection. According to the Immigration Forum, unaccompanied children (UACs) confront a high risk of exploitation and abuse by smugglers and human traffickers. In fact, nearly 80% of UACs travel with smugglers, who sometimes sell migrant children to human traffickers, into prostitution, or forced labor. According to the State Department, trafficking and smuggling can go hand in hand with many children believing they are being smuggled only to be trafficked. Another report by the Daily Beast explains that in recent years, cartels have taken a more involved approach to human smuggling which has produced a high-level human trafficking ring.

The cartels have the means because they control nearly the entire border, including Los Zetas, Sinaloa, and Knights of Templar cartels. In the past, coyotes would smuggle migrants across the border and they paid the cartels a fee for permission to enter the United States, but in recent years, Acting Deputy Director of U.S. Immigration and Customs Enforcement testified before Congress that, “the enterprises have teams specializing in logistics, transportation, surveillance, stash houses and accounting – all supporting an industry whose revenues have soared to an estimated $13 billion today from $500 million in 2018…” They often charge people crossing the border a steep fee that they cannot afford and need to pay in installments. It is not a far leap to imagine immigrants are forced to pay smugglers their ‘debt’ even after they cross the border. In 2013, the Zetas cartel leader was charged with ordering the murder of 265 migrants who likely refused to be drug mules. It is alarming that children are not afforded a genuine choice when interacting with cartels and their forced recruitment.

In 2022, AZ Central reported that criminal organizations prey on migrants, even kidnapping migrants and extorting their families for money. While immigration issues are regularly rightly blamed on the current president, however, effects of the previous administration’s policies are felt for years. Trump-era immigration restrictions during the pandemic, Title 42 for example, gave border officials authority to rapidly remove immigrants to Mexico and stranded thousands of migrants in Mexico in this terrible limbo where there was no protection from authorities from either side of the border. With migrants being stuck in Mexico for weeks if not months, it left them vulnerable to cartels’ exploitation. Chelsea Sachau, managing attorney of the Border Action Team at the Florence Immigrant and Refugee Rights Project, said “we have a border policy that is driving families and refugees directly into the hands of organized crime.”

Detainment Process for Children

Immigration detention is an inhumane practice that strips migrants of their identity and dignity. They are treated as criminals despite undocumented migration is generally not a criminal event unless it occurs after the immigrant has previously been deported and returned without permission. The statutory and legal framework, establishes the immigration process for UACs once they are apprehended by border officials. First, a Notice to Appear (NTA) is issued, which mandates the child’s attendance before an immigration judge. Then, the NTA is filed with the Executive Office for Immigration Review (EOIR), which details the immigration charges against the UAC for entering without inspection and orders their presence at an immigration hearing on a specific date. Next, the UAC is transferred into the custody of the Health and Human Services Office of Refugee Resettlement (ORR) who then tries to find a sponsor for the UAC to live with. Most sponsors are the child’s parent or legal guardian, but in instances where they are not available children face foster homes, group homes, or independent, overcrowded shelters. There are standards that HHS must follow to find a suitable sponsor, which includes the sponsor must be able to provide for the child’s well-being and ensure they do not pose a risk to the child. The Act, however, does not make home visits mandatory for all UACs placed with sponsors.

According to a staff report by the United States Senate, HHS also complies with the Flores agreement, which favors the release of UACs pending an immigration hearing. While this is generally a good policy for UACs mental and physical health, the downside of this is that HHS expanded what sponsors can take on released UACs, which inevitably means less oversight. While ORR performs sponsor assessments, tracks UACs to a certain extent using a portal, and has other vetting measures in place, the surge in UACs crossing the border has overwhelmed the ORR and has resulted in terrible consequences.

Aftermath

In 2015, a federal grand jury indicted individuals who recruited Guatemalan citizens and smuggled them into the United States, including minors, to force them into labor. The minors had been placed into custody with their traffickers by the ORR, which happened because the defendants had falsely represented themselves as a family friend of the victims. The victims’ parents were in certain instances contacted and corroborated. It is concerning that parents would do this, but one has to imagine the terrible position they are in or the threats they face for the welfare of themselves and their children. In fact, the traffickers would consistently threaten the victims and their families with murder if the children did not work for free. The traffickers forced the children to work on egg farms in Ohio while receiving little to no pay and forced to live in substandard living situations.

Today, 85,000 UACs are unaccounted for because once they were released into the custody of their sponsors, ORR lost track of them in the past two years. A press release from the hearing on “Oversight of the Office of Refugee Resettlement’s Unaccompanied Alien Children Program” reported that due to the backlog of children in Department of Homeland Security (DHS) custody, ORR removed the background check requirements and even some identification requirements. The New York Times reported that whistleblowers from the ORR had allegedly been fired for raising concerns about UACs’ placement.

Republicans are using this crisis for their anti-immigration narrative, calling for stricter immigration policies and border security. Democrats, on the other hand, place more importance on the pathways for relief for those who enter undocumented. The welfare of children should not be a political pawn and their exploitation on this side of the border needs a complete policy and procedures overhaul. Recruitment and exploitation does not start on this side of the border, and agencies need to take a close look at how U.S. immigration policies create a platform for criminal networks to pray on immigrants and their children. Border security is important, but we need more security for immigrants not from immigrants.