Seeking Better Protection for Unaccompanied Children

Last year, more than 150,000 unaccompanied children (UAC) arrived at the Southwest border. Roughly one in every six of these children were under the age of 13.

Since 2021, the number of yearly apprehensions of UACs has been increasing, and it is not entirely clear where all these children are sent once apprehended. A federal audit recently found that more than 100 migrant children in the United States are working dangerous jobs that violate child labor laws.

Concerns over child labor exploitation and the spike in UAC apprehensions at the border have sparked debate among immigrants’ rights advocates and lawmakers over how children are detained and the current procedures for release.

In the United States, UACs are migrants who are in the country without lawful status and without a parent or guardian. A variety of laws and agencies determine their treatment.

The Department of Homeland Security and the U.S. Department of Health and Human Services (HHS) share responsibility for how UACs are detained and processed, while the Office of Refugee Resettlement (ORR) within HHS oversees operations related to their care.

In 1997, the Flores Settlement Agreement (FSA) established national standards for the treatment of children in immigration custody, including detention and release protocols. To ensure the safety and care of minors, the FSA required that minors be placed in “the least restrictive setting” three to five days after being apprehended. This could mean being released to family members or legal guardians or being placed in “nonsecure, state-licensed facilities.”

In 2008, Congress passed the Trafficking Victims Protection Reauthorization Act, seeking to further address how UACs are treated. Under this law, ORR is required to transfer UACs within 72 hours and—in addition to the requirements outlined in the FSA—focus on the “best interest of the child.”

In 2019, the Department of Homeland Security and HHS issued a joint rule seeking to terminate FSA to allow agencies discretion in their response to the influx of UACs and migrants at the border. Critics of this rule argued that the regulation would strip UACs of the limited legal protections available to them.

In 2020, the Trump Administration permitted U.S. Customs and Border Protection to “promptly expel unaccompanied children at the border” due to public health concerns around COVID-19. The Biden Administration stopped these removals but still permits expulsions of other migrants. Some advocates for reform argue that this process has resulted in an increase in UACs. Due to the UAC exception, parents are forced to “make the awful decision to separate from their children after being expelled or preemptively before they can be,” according to reports.

In September 2023, HHS announced a proposed regulation to improve protections and services for UACs. According to HHS, the proposed rule would seek to establish a more structured approach to how UACs are cared for.

Although some advocates for reform argue that the proposal represents necessary and compassionate steps towards addressing the welfare of UACs, others raise concerns about the proposed licensing requirement for shelters and foster care programs. They caution that displacing state and independent licensing in favor of a federal, self-monitoring system might lead to a decline in monitoring and oversight standards.

In this week’s Saturday Seminar, scholars and advocates examine policies impacting UACs and suggest further reforms to protect migrant children.

• Although the United States. can avoid responsibilities related to the standard of care for UACs under international treaties, it cannot disregard its legal obligations under the Constitution, argues Randi Mandelbaum of Rutgers Law School in an article for American University Law Review. Child welfare laws, though flawed, provide a roadmap of the constitutional protections afforded to children, explains According to Mandelbaum, the federal government does not offer these same protections to migrant children. Mandelbaum contends that while HHS monitors and ensures that state and local welfare programs comply with federal laws, ORR “regularly ignores the very same child welfare laws and policies.” To act in the best interests of UACs, the federal government should adhere to these child welfare mandates to prevent child abuse and neglect, Mandelbaum recommends.
• In an article for Loyola University Chicago International Law Review, Diana Ramirez of the Elisabeth Haub School of Law at Pace University addresses the discrepancy between the “best interest of the child” principle and how it is applied in U.S. law. Ramirez explains that the U.S., the only country that has not ratified the Convention on the Rights of the Child, does not consider a child’s best interest in adjudicating immigration proceedings. Furthermore, Ramirez notes that, although the FSA provides UACs with some protections regarding treatment and detention, detention centers do not always comply with the agreement or with international standards. To address these issues and protect UACs, Ramirez recommends stronger immigration legislation and regulation that adheres to the “best interest of the child” principle.
• In an article for the DuPage County Bar Association Brief, Chad K. McJannett argues that states should reform their juvenile court statutes to expand protections for unaccompanied migrant children. Some UACs seek Special Immigrant Juvenile Status, which is a federal immigration classification that puts children on the path to citizenship, but they must then navigate both the federal court system and state juvenile courts, McJannett explains. Inconsistencies between federal and state laws, however, can cause children to age out of eligibility for this status, McJannett contends. McJannett proposes that states amend their juvenile court statutes to extend age-out protections so that fewer children lose their eligibility for this path to citizenship.
• UACs need stronger support after release from federal custody, Mark Greenberg and several coauthors argue in a reportfor the Migration Policy Institute. The Greenberg team contends that federal follow-up services are minimal after children part with immigration officials—often no more than a phone call after 30 days. To have better continuity of care, Greenberg and his coauthors recommend that the federal government provide legal representation to youth, extend case management services, and work with state and local governments to fill these gaps. These reforms, the Greenberg team suggests, could ensure more equitable outcomes for UACs and their communities.
• The practice of having UACs represent themselves in immigration court “needs to end,” urges law clerk Catherine Kannam in a note for the Boston University Public Interest Law Journal. Kannam details how the current standards in immigration proceedings are at odds with due process rights and Supreme Court precedent. Kannam notes that this contrasting treatment is due to the lack of U.S. citizenship status for UACs. Kannam contends that while noncitizens possess due process rights in deportation proceedings, the Supreme Court has recognized that Congress can make “rules that would be unacceptable if applied to citizens.” To ensure that UACs are protected in immigration proceedings, reforms to provide legal representation for UACs should be passed, Kannam urges.
• In an article for Laws, Kerri Evans of the University of Maryland, Baltimore County argues that social workers and health and legal professionals would be better equipped to protect UACs by using a “global child welfare perspective.” This perspective, Evans asserts, would consider the impact of placements on UACs’ mental health and access to legal and educational resources. The policies governing the care of UACs, on the state and federal level—particularly those in ORR’s Long Term Fost Care program—are minimal, Evans finds. Policymakers and human service professionals should pursue practices that are least harmful to UACs out of an ethical duty, Evans argues. Stable, “language-matched foster care placements,” Evans insists, is a practice that would center the best interests of UACs.