June 18, 2018 – The Trump Administration continues to implement its anti-immigration agenda by targeting children and families attempting to cross the southern border. This memo seeks to highlight and explain important issues, including misinformation about the Flores Settlement Agreement. But the priority is to identify how the Executive branch is intentionally overwhelming the system to justify and force reform (or break it indefinitely).
The Flores Settlement Agreement, sets forth national standards related to the treatment, custody and placement of migrant children in the immigration system, unaccompanied children are transferred to the custody of the Office of Refugee Resettlement (ORR), within the Department of Health and Human Services (HHS). ORR may hold a child in custody as long as needed to ensure a child’s safe placement and reunification with an appropriate “sponsor” while awaiting immigration proceedings. The Administration has been spreading misinformation about Flores – see Flores myths v. facts.
OVERWHELMING THE SYSTEM
The Trump Administration has created the current immigration crisis with a number of steps that are seemingly determined to break the current system. Though imperfect, the existing systems in place serve to protect unaccompanied children as they seek asylum or other protection. As each step in this process is overwhelmed, the Administration and supporters of their anti-immigration policies in Congress point to the need for greater enforcement – rather than protection – to fix the self-made problem.
For a timeline of the Administration’s policies that have slowly created the current crisis facing unaccompanied children, click here.
Efforts to undermine existing systems include:
- Family Separation: On May 7, 2018, Attorney General Jeff Sessions announced a “zero tolerance” policy towards border crossers apprehended between ports of entry. Under the policy, border officials with the Department of Homeland Security (DHS) are to refer every individual apprehended near the border who did not present at an official port of entry to the Justice Department (DOJ) for criminal prosecution for illegal entry or illegal re-entry. As part of this policy, adults traveling with children are being separated, a new interpretation of this rule never before implemented. This has become a de facto family separation policy – something the Even before the zero-tolerance policy was implemented, it was reported that 700 children had been separated from an adult claiming to be their parent from October 2017 to April 2018. It has been reported that nearly 2,000 children were separated from their families in a 6-week period (April 19 – May 31,, 2018). And although the new policy focuses on those apprehended between ports of entry, the Administration has also separated families presenting at a port of entry and seeking asylum, even if not referred for prosecution. This policy is creating new unaccompanied children. Once separated, parents go to the custody of the U.S. Marshals for criminal prosecution and/or the custody of Immigration and Customs Enforcement (ICE) for their immigration case after their criminal case. Children now considered “unaccompanied” because they have been separated from their parents are transferred to ORR. It is often impossible for children and parents to find each other and to reunite, even when one is deported. This is a cruel and unnecessary policy.
- ORR lacks Resources, Mission Direction: The Administration has manufactured a crisis through its “zero tolerance” policy. ORR is overwhelmed with kids who are now unaccompanied because the Administration has taken them from their parents to pursue prosecutions, including for some asylum seekers. ORR has traditionally been an agency focused on child welfare but, under new Administration policy, it is an office trending toward enforcement. ORR must retain its mission focus and be provided the resources it needs to ensure appropriate care and follow-up for children in its custody. ORR must take all children referred by DHS; kids should not be housed in border patrol stations or ICE facilities. As separations increase, ORR’s bed space capacity will become quickly overwhelmed, and the agency will be forced to look to expensive and less desirable military facilities, including so-called “tent cities.”
- Current ORR Facilities Do Not Have the Capacity to House Increased Numbers of Small Children and Infants: With the Administration’s new policies mandating family separation, more infants and children – now separated from their parents – are now being classified as unaccompanied children. More than 100 of the children separated from their parents from the middle to the end of May 2018 were under the age of four. Many ORR facilities are not designed to house and care for young children who cannot feed, bathe or clothe themselves. In the past when ORR had custody of very young children or infants who needed care, they would release them as soon as possible to a sponsor who had the ability to provide age-appropriate care. This Administration’s policy of forcibly separating young children and infants from their parents and erecting policies that favor detention and confinement over release has put small children – already traumatized by their experience – at increased peril.
- Obstructing Immigration Judges’ Ability to Exercise Discretion: Attorney General Sessions’ decision to virtually end the ability of immigration judges to temporarily close unaccompanied children’s cases that are being adjudicated by DHS is another intentional tactic to erect additional barriers for children attempting to access U.S. protection, designed to expedite returning them to danger. In the past, an immigration judge had the discretion to temporarily remove a child from the immigration court docket if the minor was applying for humanitarian relief with U.S. Citizenship and Immigration Services (USCIS). USCIS has jurisdiction over the humanitarian protection claims for which most unaccompanied children are eligible, including asylum, special immigrant juvenile status, and trafficking visas. Forcing immigration judges to keep these cases on their active docket increases an already over-crowded docket. Coupled with the Administration’s new case completion requirements, this puts immigration judges in a Catch-22 situation. Judges can neither allow their government colleagues an opportunity to review a child’s case to determine if that child would be in danger if returned to their home country nor can they grant children continuances to find lawyers and collect evidence. Children may now be ordered deported, even though they may have a valid claim for protection.
- Narrowing Asylum Eligibility for Women and Children: On June 11, 2018, Attorney General Sessions announced a new interpretation of asylum law that will condemn thousands of women and children to return to grave harm and death. The decision increases the burden of proof in asylum claims involving persecution by private actors. The standard of evidence is greatly increased, which means that it will be nearly impossible to win an asylum claim without a lawyer because the information needed to support the claim will be far greater and much more difficult to obtain. This, combined with the imposed requirements on immigration judges, is a lethal combination for women and child asylum seekers in particular because they have to prove much more but have much less time in which to do it.
As Congress considers legislative solutions, misinformation about unaccompanied children will undoubtedly increase. Bills may combine poison pill proposals to seek compromise, and KIND and our partners can explain the implications of proposed legislation and how it may hurt vulnerable women and children. In particular, the two Republican bills House Speaker Paul Ryan plans to bring to a vote this week would decimate protections for unaccompanied children, asylum seekers, and other vulnerable immigrants and refugees. More here.
In contrast, there are several legislative proposals that have been introduced to ensure the safety and well-being of migrant children and families by halting the use of family separation as a deterrent, ensuring humane treatment at the border, helping children separated from their parents due to immigration enforcement, and providing legal representation to ensure unaccompanied children have a full and fair opportunity to make their cases and access legal protection.
Bills widely endorsed by those who want to protect immigrant and refugee children and families include:
- H.R. 2572 – Protect Family Values at the Border Act
- H.R. 5950 / S.2937 – the HELP Separated Children Act
- H.R. 2043 / S. 2468 – Fair Day in Court for Kids Act of 2018
- S. 3036 – The Keep Families Together Act
- Appropriations bills/report language that would prevent blanket and inhumane family separation practices, and track when, where and how often family separation occurs.
KIND will continue to work to protect against the roll back of vital protections for unaccompanied children and to provide pro bono attorneys for as many of these children as possible to help ensure they have a fair chance to make their case for U.S. protection. www.supportkind.org