Unaccompanied Children and the U.S. Immigration System
Contributor: Van T. Doan
For many months, the evening news has shown stories and images of unaccompanied alien children (UAC) arriving in the United States in increasing, and increasingly alarming, numbers. Who are these children? Why are they making this perilous journey? Where do they come from, and what happens to them once they arrive in the United States?
The law defines UAC as children under the age of eighteen who lack lawful immigration status in the United States and who are without a parent or legal guardian in the U.S., or there is no parent or legal guardian in the U.S. available to provide care and custody.
Unaccompanied alien children in the United States come primarily from four countries: Mexico, El Salvador, Guatemala, and Honduras. At one time, the vast majority of UAC came from Mexico; by the first three months of fiscal year 2014, however, nearly three-quarters came from the three Central American countries, with only one quarter coming from Mexico. This is due not to a decrease in the number of children coming from Mexico, but rather a dramatic increase in the number of UACs from the other three countries. Most of these children make the journey to the U.S. for economic opportunity, to escape abuse, privation, or dangerous conditions in their home countries, or to try to reunite with relatives living in this country. Some were brought to this country by human trafficking rings.
Caught at the Border: What Happens Next
Responsibility for the processing and treatment of UACs is divided between the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR). The Department of Homeland Security oversees the apprehension and transfer of UACs and the return of UACs to their home country. Customs and Border Protection (CBP), an agency of DHS, apprehends and processes most of the UAC along the U.S. southwest border. The Williams Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) was enacted to ensure UAC are adequately screened to determine whether there is a reason they should not be returned to their home country.
There is some difference in procedure depending on whether a child is from a contiguous country (usually Mexico) or a non-contiguous country (usually El Salvador, Guatemala, or Honduras). If a child is from a contiguous country, he or she must be screened within 48 hours of apprehension. If the child has not been a victim of severe trafficking, there is no credible evidence that the child is at risk of trafficking or persecution upon return, and the child is able to voluntarily decide to return to his or her home country, he or she is eligible for voluntary return. If the child doesn't meet the above criteria, he or she is transferred to the Office of Refugee Resettlement. Formal removal proceedings are then initiated. The State Department must ensure that children who are returned to contiguous countries are returned safely.
UAC from non-contiguous countries are placed in formal removal proceedings and must appear in immigration court. Their care and custody is overseen by the Department of Health and Human Services (HHS). Within 48 hours after a child from a non-contiguous country is apprehended, HHS must be notified. Unless there are exceptional circumstances, UAC must be transferred to HHS custody no later than 72 hours after Border Patrol determines they are unaccompanied.
An unaccompanied alien child must be placed in the least restrictive setting possible while waiting for a court hearing, taking into account flight risk and danger to self or others. If there is a suitable relative in the U.S., a child may be placed with him or her; if not, the child may be placed in a shelter or foster home. HHS will not place a child with a proposed sponsor before determining that the sponsor is able to provide for the child's mental and physical well-being. HHS should try to ensure that a UAC has access to free legal counsel and a child advocate.
To learn more about UAC and immigration relief options for these children, contact Howard County, MD immigration lawyer Van T. Doan.