Exploring Child Migration through a Legal and Anthropological Lens
Part I: Overview
In 1985, a 15-year old girl named Jenny Lisette Flores fled the El Salvadoran civil war to live with her aunt in the United States. Flores was apprehended at the southern border of the United States and detained by the legacy Immigration and Naturalization Service (INS). She was handcuffed, strip-searched and detained for more than two months in a juvenile facility while she awaited her immigration removal hearings to decide whether or not she had the right to live in the United States. Flores was not released to her aunt because the INS did not allow unaccompanied children to be released to third party adults.
Flores became the plaintiff in a class action lawsuit, entitled Flores v. Meese, which challenged the treatment of unaccompanied children in immigration detention. The litigation took nine years. The Supreme Court remanded the Flores case to district court in California. The parties involved reached a settlement agreement, which was approved by a California federal court in 1997. This settlement agreement created a nation-wide policy for the detention, treatment, and release of minors in the custody of U.S. immigration officials. Importantly, the settlement recognized the vulnerability of unaccompanied minors detained without their parents or legal guardians. It further stipulated that children must be held in the least restrictive setting appropriate for their age and needs. Additionally, the settlement agreement required that immigration officials detaining minors provide (1) food and drinking water; (2) medical assistance in emergencies; (3) toilets and sinks; (4) adequate temperature control and ventilation; (5) adequate supervision to protect minors from others; and (6) separation from unrelated adults whenever possible.
In 2002, the processing, care and custody of unaccompanied minors was divided between the U.S. Department of Homeland Security (DHS) and the Office of Refugee Resettlement (ORR), part of the federal Department of Health and Human Services. ORR started caring for unaccompanied children in 2003 through the Division of Unaccompanied Children’s Services (DUCS). Unaccompanied children are referred to as Unaccompanied Alien Children (UAC). UACs are physically apprehended by U.S. Customs and Border Control (CBP) and then passed on to Immigration and Customs Enforcement (ICE) for physical transportation to an ORR facility within 72 hours of apprehension, unless the UAC is from Canada or Mexico. Unaccompanied children are then put into the custody of ORR, where they remain until a suitable sponsor can be located. The sponsor is an individual who can both safely care for the child and ensure his/her appearance before the immigration court. There are four categories of potential sponsors, classified by HHS. These are: 1) Parents, legal guardians, and step-parents that have joint custody of the UAC; 2) Immediate relatives of the UAC, such as brothers, sisters, aunt, uncles, grandparents, and first cousins; 3) Distant relatives or unrelated individuals; 4) Cases in which the UAC has no identified sponsor.
Part II: Falling through the Cracks of Detention
ORR contracts with state-licensed agencies to care for unaccompanied children and provide for their medical, educational, recreational, and social needs. Importantly, the agencies also plan for the release of UACs to a suitable sponsor. Prior to 2012, background checks and fingerprinting of sponsors as well as home-studies were the norm. However, investigative reports allege that due to the increase in unaccompanied children migrating alone to the United States, ORR standards for reunification were lowered.
In a U.S. Senate Subcommittee investigation in January 2016, reviewing ORR’s role in protecting unaccompanied children from abuse and trafficking, the Subcommittee confirmed that the failure to adequately verify a sponsor’s alleged relationship with a UAC has led to unsafe placements. These placements include the labor trafficking of Guatemalan boys who were forced to work without pay for 12 hours a day on chicken farms in Marion, Ohio; a 14-year old Honduran girl who was forced to work in a cantina in Florida by her stepfather in which sex work was common; and a 14-year old Guatemalan boy who was locked in an apartment, beaten, starved and extorted. An Associated Press article states that more than two dozen children who were placed with sponsors were subjected to sexual abuse, labor trafficking, or severe abuse and neglect.
As advocates, we are aware of other children who have found themselves in trafficking situations at the hands of their sponsors. While ORR caseworkers may screen unaccompanied children for trafficking indicators while they are in custody, dangerous conditions can occur for children when they are released to sponsors whose family relation or history might not raise any red flags of abuse or mistreatment for ORR or any other government agency with whom the child comes into contact.
Trafficking victims are often invisible, and traffickers often go to extremes to keep their victims, especially minor victims, quiet and out of sight. The indictment in the Ohio case states that the defendants used a combination of threats, humiliation, deprivation, financial coercion, debt manipulation, and monitoring to create a climate of fear and helplessness that would compel [the victims’] compliance.
It is crucial that unaccompanied children have advocates appointed to ensure their legal rights and welfare as early on in their immigration proceedings as possible. Had a child advocate/guardian ad litem or an attorney been appointed for these children, it is possible that the child’s absence would have been noticed and local authorities could have been notified to promote the child’s safety and well-being.
While ORR stated it is increasing resources for minors and is contracting with agencies to provide more beds for children in custody, detaining more unaccompanied children for longer periods of time is unlikely to solve the scourge of trafficking in this extremely vulnerable population.
Up Next: The Treatment of Accompanied Children in Detention
Claire R. Thomas is an attorney and adjunct professor interested in migration, statelessness, human rights, and empowerment for women and girls facing poverty and gender-based violence. Based in New York City, Thomas advocates for immigrant children facing deportation from the United States as an attorney with the Safe Passage Project and teaches at New York Law School.