When an unaccompanied child or migrant family turn themselves in or are detained by U.S. Customs and Border Protection (CBP) officials at the U.S.-Mexico border, they often find themselves facing what can seem like a vast, intimidating bureaucracy. The various processing procedures before them can be confusing, and they often lack clear access to information about their obligations as well as right to seek protection.
For children, the process differs depending on their country of origin. As WOLA has noted, for unaccompanied Mexican migrant children CBP agents make the first determination about any possible needs for protection and decide to either send them home, or, in the minority of cases, refer them to the Office of Refugee Resettlement (ORR), a branch of the Department of Health and Human Services. Children from non-contiguous countries like those of Central America are processed by CBP and then automatically sent to the ORR. At ORR facilities, these children receive care and some legal advice and are later placed with a family member or sponsor already in the United States, with whom they live while awaiting their immigration hearing.
The majority of migrants that arrive in family groups at the border are likely to be released and taken to a shelter or service provider after being processed. However, in response to the influx of Central Americans at the border in 2014, the Obama Administration announced that it would renew the mass detention of migrant families. WOLA has been deeply critical of this practice and the conditions they face. Many of the families held in detention have been victims of horrific crimes and likely have valid claims for asylum in the United States. The prison-like conditions within the detention centers, lack of privacy, and allegations of abuse further traumatize children and their mothers.
At the same time, many children and families who might be eligible for political asylum do not know their rights, or lack access to attorneys who could help them. In fact, the vast majority families looking for asylum do so without legal assistance. According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC), families with access to immigration lawyers have a “more than fourteen-fold” greater chance of receiving asylum status than those who did not have lawyers.
This is particularly troubling given that some deported children—particularly those from Guatemala, Honduras, and El Salvador—have been returned to extremely violent and dangerous situations, and there are reports that some have been killed after their return.
A Climate of Fear in the United States
Meanwhile, millions of families and children who have entered into the United States in recent years are living in fear.
In January 2016, the Department of Homeland Security (DHS) announced raids targeting migrant women and children for deportation. In January, Immigration and Customs Enforcement (ICE) detained 121 migrants living in Georgia, North Carolina, and Texas, and a larger May/June operation detained 331 people across Illinois, Indiana, Kentucky, Kansas, Missouri, and Wisconsin.
In both cases, the press was given advanced notice of the raids. This may not be a coincidence, considering that the United States is engaged in a public messaging campaign aimed at Central Americans with the goal of dissuading unauthorized immigration to the country. In spite of the publicity, the reality is that arrest totals in both operations were relatively small compared to ICE’s day-to-day enforcement work. In 2015, ICE authorities carried out a total of 235,413 “removals,” or an average of 645 a day. This has led some to question whether the recent raids were specifically calculated to raise alarm in immigrant communities, or sadly, to make the administration look “tough” on immigrants in an election year.
In defense of the raids, DHS Secretary Jeh Johnson has said that ICE is prioritizing undocumented immigrants who have received removal orders from immigration courts, and have no available avenues of appealing them. In accordance with the enforcement priorities established by the administration in November 2014, Johnson has also said that officials are prioritizing individuals who were apprehended at the border after January 1, 2014, as well as convicted criminals and those considered “threats to national security, border security, and public safety.”
Serious Concerns Over Screening, Prioritization
In practice, however, many immigrants who do not meet these priorities have been swept up in enforcement efforts. A recent report by the CARA Family Detention Pro Bono Project found at least 21 instances of people affected by the most recent raids who were “denied due process and a meaningful opportunity to seek asylum or other legal protection.” In many of these cases, individuals targeted in the raids never actually received a removal order. In one instance, a mother was wrongfully arrested before a court hearing over her immigration status was even held. Others were arrested despite never receiving notification of court hearings, in many cases due to clerical errors or general bureaucratic oversight.
The CARA Project also uncovered evidence that in the raids, ICE had detained immigrants who would likely qualify for asylum and other forms of legal protection due to the risks they face if deported. The fact that so many of these individuals were never even adequately screened to detect protection concerns is deeply disturbing.
In addition to these cases, there have been reports that fuel doubts over whether ICE is in fact adhering to the Obama administration’s priorities for deportations. These include instances in which the raids—which have targeted immigrants in homes, workplaces, and on the way to school— have resulted in the detention of individuals who have committed minor offenses, or no offenses at all. There have been reports of ICE agents seeking one individual in an operation, only to arrest several others.
Charting a Path Forward
The anti-immigrant rhetoric that characterized Trump’s campaign and provided him with significant support is certainly not going to vanish overnight. However, U.S. values of compassion and generosity point to long-standing commitment to provide protection for those at risk. In keeping with this commitment, the President-elect should prioritize the following issues.
- Stop targeting women and children as an enforcement priority. DHS has a legal mandate to carry out immigration enforcement, but mass raids like those announced in early 2016, which targeted mostly women and children, have raised serious concerns about due process. Many of those who were swept up in the raids were not screened effectively or given a meaningful opportunity to seek asylum or other legal protection, and face credible threats if returned to their countries of origin. Immigration enforcement operations should be carried out in a way that prioritizes protecting vulnerable individuals, and not based on a desire to “send a message” or raise alarms within immigrant communities.
- Increase access to legal counsel for unaccompanied children and families. According to a January 2015 TRAC analysis, less than 30 percent of over 26,000 individuals who had been prioritized for removal were able to find legal representation. Without representation, only 1.5 percent of the families were allowed to stay in the United States. U.S. senators and representatives have introduced legislation in both chambers to ensure that unaccompanied children and vulnerable immigrants like these receive legal representation, and the incoming administration should support it.
- End the inhumane practice of locking up families.The migrant families from Central America who turn themselves in to border agents are seeking protection in the United States, and should be taken for what they are: potential asylum seekers. However, family detention centers have been met with widespread reports of poor conditions, abuse, detrimental mental and physical health impacts, and due process violations—including arbitrary detention and obstacles to obtaining legal representation. DHS should accept the recent recommendation made by the DHS Advisory Committee on Family Residential Centers, and work to end family detention and this policy should be continued into the next administration. The DHS should expand alternatives to detention which are more cost effective and humane, and work to release and place families with community ties in the United States, only detaining the parents when they present a substantial flight risk or danger to the community.