Q. & A.:The Humanitarian Challenge of Unaccompanied Children at the Border

By Isaac Chotiner, THE NEW YORKER

March 23, 2021

Migrant children being held in a Customs and Border Protection temporary overflow facility in Donna, Texas.

Source photograph courtesy Office of Rep. Henry Cuellar / AP

For the past year, the southern border has been largely closed, under restrictions imposed by the Trump Administration and maintained by President Biden. But the new Administration has decided not to turn away unaccompanied minors, for humanitarian reasons. Last month, nearly ten thousand children arrived at the southern border without a parent or guardian. They make up part of a steady increase in arrivals over the past ten months. Between October and February, about four hundred thousand people were apprehended or expelled at the border, nearly double the number from the same period a year before.

The Biden Administration’s decision not to turn back unaccompanied minors has led to multiple challenges. Some children have been held by Customs and Border Protection for more than seventy-two hours, the limit established by the Flores agreement, which mandates basic protections for children in C.B.P. custody. Both C.B.P. detention centers and Health and Human Services shelters, where unaccompanied children are held until they can be matched with sponsors, are overcrowded, owing in part to coronavirus-related restrictions. As a result, the government has opened emergency shelters and has considered reopening an influx facility that was closed during the Trump Administration amid a public outcry about neglect and abuse of the children who were held there.

I recently spoke by phone with Neha Desai, the director of immigration at the National Center for Youth Law, and one of the two lawyers who was recently permitted to meet with unaccompanied children at a C.B.P. facility in Donna, Texas. During our conversation, which has been edited for length and clarity, we discussed what the Biden Administration must do to insure compliance with the law, the different ways that the government handles children who do or do not have a sponsor, and the extent to which the current Administration has broken from Trump’s approach at the border.

Is what’s going on at the border right now a crisis?

I think we should be thinking about this as a humanitarian challenge, and a humanitarian challenge that we can meet. I think we need to insure urgently that there is sufficient capacity to care for unaccompanied children, and insure that children can be released as quickly as it’s safe to do so. But we have the ability to do that. This is not unprecedented. We’re seeing an increase in the number of children arriving, but we’re not seeing unprecedented numbers of children. Obviously, we never experienced this during a pandemic, and so that is an added layer. But, again, it’s not something that we haven’t experienced previously.

We have all these children who are coming to the border, and a lot of them are unaccompanied. What are the legal obligations of the U.S. government, and what are the different options that the Biden Administration has for what to do with these children?

Unaccompanied children are arriving at the border without their parents or legal guardians, and they are seeking protection. And the government is legally obligated to insure that these children are safely and humanely processed, and released to sponsors as quickly as possible. So, when unaccompanied children arrive at the border, there’s a three-stage process. They are initially picked up by Border Patrol agents, or they present themselves at a port of entry; they’re detained in Customs and Border Protection facilities; and they are supposed to be transferred, generally speaking, within seventy-two hours, to the Office of Refugee Resettlement, once they’re determined to be unaccompanied children.

So, essentially, that means transferring them from the Department of Homeland Security to the Department of Health and Human Services.

Yes, but again, that’s generally speaking. There are exceptions. But once that transfer occurs, and children are in the custody of Health and Human Services, specifically the Office of Refugee Resettlement, children are supposed to be placed in licensed child-care facilities, where they are held until the third stage, where they’re released to their sponsors, who are overwhelmingly family members that reside in the United States.

Do we know what percentage of them have a sponsor?

I have seen some numbers over the years, and I don’t think we know at this exact moment what percentage of children have family members to whom they can be released. But I feel pretty confident in saying that it’s the vast majority of children.

Is it helpful when thinking about this to divide in our minds the issue facing the government as what to do with children who have a sponsor and what to do with children who don’t?

That’s a fair way of thinking about it. But, right now, the issues are actually across the board, and they’re impacting children who have immediate family members. Some of the children we met with have mothers and fathers who are here, and they’re still spending over a week in C.B.P. custody before they’re even transferred to O.R.R. And then, at that point, the process will start. So it’s not even a question of whether you have a sponsor or not at this moment. I think, historically, or certainly over the past couple of years, we’ve seen a huge distinction between the length of time that children who have viable sponsors are spending in custody versus those that don’t have really straightforward options in terms of release.

So, then, why are some kids being held for longer than seventy-two hours? And what needs to happen for that to no longer be the case, and for them to be transferred to sanitary and healthy and safe facilities under H.H.S.?

Right now, there are basic capacity issues within O.R.R. There is not enough bed space to accommodate the number of children who are coming in. And then, simultaneously, there is not enough happening to rapidly release children who are already in custody. So it’s the combination of those two factors. And covid-19-related precautions that have been taken to reduce bed space in order to comply with safety protocols have just added a layer of complexity to this entire situation.

What is the Biden Administration doing to insure that the situation improves in the medium or long term?

From what we’ve seen so far, the White House and the agencies seem committed to humanely addressing the humanitarian situation they face. Time will tell whether their good intentions and hard work are translating into the critical changes that are urgently needed. But they have moved forward with a number of recommendations that we and others have been advocating for months. One is the joint processing centers at the border—having H.H.S. co-located within C.B.P. facilities to begin the process of release as early as possible. Another is providing intensive case management—really just increasing the time they are working—so we have children with viable sponsors moving through that process more rapidly and getting released into homes with their family members. Another is paying for flights home. This is something that we pushed for a long time. And, as the situation has gotten more dire, the agencies have started to take more of these steps, which I will acknowledge have fiscal implications, but certainly the cost of speeding up releases is going to be far less than the cost of standing up incredibly large and expensive influx facilities and other short-term processing centers. [On Monday, the government reportedly issued new guidance allowing some children to move in with their parents or legal guardian more quickly. “This is a really significant step in the right direction and we are hopeful that it will result in expedited release for numerous children,” Desai said.]

So even if we could insure that these kids have better conditions while they are being held in custody, they should still be transferred to a guardian or sponsor to await a hearing on whether they will stay in the country, correct? And for the kids that don’t have a sponsor, what are the different options that the Biden Administration has?

So, first and foremost, we always have to keep central that detention is profoundly harmful for children, period. There’s no doubt that the conditions in C.B.P. are fundamentally inappropriate for children for any period of time, but even detention within O.R.R. is harmful and can have short-term and long-term impacts on children. So it is of utmost urgency to have children released. That is in response to your first question.

For your second question, for children who don’t have viable sponsors, the way the system is set up is that those children are supposed to have the option of going into long-term foster-care placements, or L.T.F.C. And it’s similar to the types of placements that children in state child-welfare systems have, which is a foster home. And those children are in the community. They can go to regular public schools and live in a family-like setting, which is the most appropriate setting for any child.

It also tends to be the case that the children who don’t have sponsors tend to have the highest mental-health needs and the greatest underlying challenges. Those children end up often getting stepped up to more restrictive facilities while they’re in O.R.R. custody. And, unfortunately, then the L.T.F.C. placements are less likely to accept them. They have the discretion to accept or reject children, and we have seen time and time again that children who don’t have sponsors are getting rejected from L.T.F.C. placements, because the L.T.F.C. providers think that those children’s needs are too high—their mental-health needs, their behavioral issues, et cetera. And that is an issue that we’ve been concerned about for a long time. And I hope we can work with this Administration to reform that aspect of the system.

What are the differences between the Trump and Biden Administrations on this?

There’s no doubt that we’re just in a profoundly different territory now, because I think we all want the same thing. We, as plaintiff’s counsel and advocates all around the country, and the government all want to see a situation in which children are out of C.B.P. custody within three days, placed in licensed facilities, and quickly released, so that they are with their families. So we’re all rowing in the same direction here, and that is fundamentally different than what we saw in the Trump years, where we know that there was some really ill-intentioned policies and practices that were intentionally prolonging the amount of time that kids were spending in custody.

And were there specific things that the Trump Administration did over its four years that make the challenge facing the Biden Administration steeper?

Absolutely. For starters, there is really a misunderstanding as to why more children are coming at this moment. Children are fleeing for their lives. They’re not coming due to policy changes. They came during the Trump years, as well, but they were largely turned away. During the last months of the Trump Administration, nine thousand unaccompanied children were turned away, and the current Administration is simply trying to follow the law now and allow children who are legally entitled to seek protection at our borders to enter. So, just at a baseline, there is the challenge of seeing an increase in numbers that are, in part, due to children having been turned away. Also, we continue to have concerns about the ongoing impact of Title 42, which continues to force families to make the impossible choice of having their children proceed alone, or having everyone return to the dangerous conditions which they fled. That is having some impact on the numbers of children who are arriving.

What is Title 42?

In March of 2020, the Trump Administration closed the border to all people seeking protection under an obscure public-health law, using covid-19 as a pretext. So this was a C.D.C. order that authorized expulsion, and it was issued over the objection of senior C.D.C. medical experts, who agreed that there was not a public-health rationale for denying people their right to claim asylum at the U.S. border. This was a policy pushed through by Stephen Miller in order to accomplish what he had always wanted to do, which was close the border. So that order has been in effect, and, as a result, we know that about, as I mentioned previously, almost nine thousand unaccompanied children were turned away at the border. President Biden has reversed this policy with regard to unaccompanied children, but, otherwise, the policy remains largely in effect. So, again, the border is still largely closed.

You’ve alluded to the Flores settlement. Can you say a little bit more about what that is? And because I know that you were one of the two lawyers who met with some of these children, can you explain why the settlement allows someone like you to meet with them?

Sure. The settlement agreement, which was signed back in 1997, sets the minimum standards for how all immigrant children, both accompanied and unaccompanied, must be treated when they’re in federal custody, and requires that children are placed in state-licensed facilities. And it requires the government to release children to sponsors—again, typically family members—without delay. So our role as counsel for plaintiffs in Flores is to insure that the government is holding up its end of the contract. We have the ability to go into facilities where children are in federal immigration custody, to interview them, to understand the conditions they’re experiencing, and to evaluate whether that reflects compliance by the government. And when we have concerns, and we had many during the prior Administration, we have the ability to go to the district-court judge and file a motion to enforce the Flores settlement agreement. Typically, my work has focussed on unaccompanied children. So, overwhelmingly, I have visited O.R.R. facilities, not D.H.S. facilities. Last week, when I went to Donna, yes, that was the C.B.P. facility.

Is there any more you can say about that?

No.

When we talked earlier, before the interview started, you had mentioned that you did not want to focus on the conditions of specific kids that you interviewed. I’m curious why that is, because I know your passion for this issue and how much you care about this. Is there a reason you see that focus as harmful?

I think, at this point, it’s public information that Donna, in particular, is dramatically overcrowded and children are spending far longer there than they should. I think the specific details of individual kids’ stories are not helpful to focus on in terms of the discussion that is taking place. I really do fear that the children we represent have become a pawn in a larger political debate. And I think that’s totally inappropriate. First and foremost, this entire issue needs to be seen through the lens of the fact that these are children fleeing for their lives. And to pick apart their individual situations and the broader moment that we’re in as a way to have political ammunition is really abhorrent.

Is there anything about your visits to these types of facilities or your team’s visits that have changed your own perspective on the issue in some way or made you think about something differently?

Honestly, I think what is most striking to me is the bravery and resilience of these children. I can’t actually put into words what it’s like to sit down and look into the eyes of these children who have just traversed multiple countries in all sorts of challenging terrain on their own, sometimes for thirty days. As much distress as we saw within them, we also saw their hope and resilience and just sheer bravery.

=======

This post has been updated to include news developments.

Isaac Chotiner is a staff writer at The New Yorker, where he is the principal contributor to Q. & A., a series of interviews with major public figures in politics, media, books, business, technology, and more.