When it Comes to Asylum, Children are Losing Out

Photo: Victoria Zegler/Save the Children

The news right now is pretty bleak. Families across the world are suffering from the impacts of the COVID-19 global pandemic. For already vulnerable populations, such as children seeking asylum in the United States, this pandemic has made their journey even more perilous and recent actions of the Trump administration have caused severe and lasting damage to many.

While immigration is an intensely complex topic, our lawmakers need to remember that children are at the heart of the debate. And no matter what side of the aisle you’re on, children should never be pawns in a political game.

The Rules are Set

International and U.S. laws have a number of protections in place for children seeking safety, including:

  • Article 14 of the 1948 Universal Declaration of Human Rights (UDHR) guarantees the right to seek asylum. According to the 1951 Refugee Convention based on the UDHR, families should be kept together, as much as possible; countries should meet refugees basic needs; and governments should work together to enable refugees to seek asylum.
  • Flores Settlement Agreement. This 1993 Supreme Court decision and subsequent court-supervised settlement with the U.S. government set strict standards regarding the detention and treatment of children. Flores set a limit on the length of time that children could be held in detention and required access to hygiene items, among other protection standards.
  • Trafficking Victims Protection Reauthorization Act (TVPRA). This 2008 U.S. law protects victims of trafficking. It provides a set of protection standards for unaccompanied children, including access to legal counsel, the ability to be transferred to the Office of Refugee Resettlement (ORR) within 72 hours for screening, and placement in the least restrictive setting possible. 

Introducing the Players

Now that we know the rules that are in place, let’s take a moment to learn more about the players – who’s making the decisions, who’s affected and who can act to protect children. 

  • Vulnerable children seeking refuge: These children are often fleeing from violence, poverty, gang activity and corruption that plagues their countries. These children come to the U.S., either with their families or by themselves (unaccompanied children).
  • The Trump administration: In 2018, the administration enacted a “zero tolerance” policy that led to family separations and placed children in cages. It also led to programs like Remain in Mexico (MPP) and “metering,” which created an invisible wall against those seeking refuge in the U.S. by pushing individuals and families back to Mexico to wait for months at a time for their immigration hearings. 
  • The Centers for Disease Control and Prevention (CDC): The CDC is a government agency under the Department of Health and Human Services (HHS), and is tasked with national health protection.
  • Customs and Border Protection (CBP): The CBP is a government agency under the Department of Homeland Security (DHS), and is tasked with protecting the border and points of entry.
  • Immigration and Customs Enforcement’s (ICE): ICE is also a government agency under the DHS, and is tasked with immigration and customs enforcement. It mostly conducts operations within the U.S.
  • Office of Refugee Resettlement (ORR): ORR is another government agency under HHS, and is tasked with the care of unaccompanied children apprehended by CBP.
  • Executive Office for Immigration Review (EOIR): EOIR is a government agency under the Department of Justice (DOJ), and is tasked with conducting removal proceedings in immigration courts and adjudicating appeals.

Setting the Stage

Unfortunately for many children and families, this immigration “game” has been going on for a long time now. Here’s some critical background information to catch you up:

The Opening Move

On March 20, 2020, the CDC issued an order that effectively closed the border to migrants and refugees. The administration claimed that it was done to protect Americans and their public health, however, the border remains open for commercial trucking and trade from the same countries which asylum seekers and migrants are coming from and for U.S. citizens. Since its enactment, this policy has rejected more than 20,000 migrants, asylum seekers and more than 1,000 unaccompanied children. The policy was supposed to be re-examined and extended every 30 days. However, on May 20, officials extended the policy indefinitely.

What happened next?

Unaccompanied children are now deported without the due process granted to them under TVPRA. According to U.S. law, ORR should have custody of these children within 72 hours. However, from March 20 to April 30, 2020, CBP sent children back to Mexico or to their countries of origin without the chance to make an asylum claim or  conducting a credible fear interview as is required by law.

Policies like Remain in Mexico had already pushed more than 60,000 individuals and families to Mexican border cities, where shelters and makeshift refugee encampments are overcrowded, and migrants are often targets of violence and exploitation. Now, amid a pandemic, our government has expelled even more people to Mexico where shelters under quarantine cannot accept them. Without shelter, migrants are forced to live in encampments lacking in hygiene, space for social distancing and protection measures. 

Establishing Control

The administration’s attorneys argued in court that children are safer from COVID-19 in ORR custody, and thus held them longer than allowed under the Flores Agreement and refused to release children to family sponsors and others willing to receive them. The Los Angeles Times reported in May that some children have been in detention for more than 400 days. On April 13, a Propublica article identified 19 children in ORR custody who had tested positive for COVID-19.

Is that against the rules?

These actions violate the Flores Settlement Agreement, which states that children should be held for no more than 20 days. It also violates several parts of the agreement:

  • The government should release children “without unnecessary delay” to the children’s parents, legal guardians, other adult relatives, another individual designated by the parents/guardians, or adequate alternative to detention.
  • The government should put children in the “least restrictive” setting appropriate.
  • The government should create and implement standards for the care and treatment of immigrant children in detention.

Also, contrary to the agreement and the administration’s argument, many children have tested positive for COVID-19 while in ORR custody. They are not being released to sponsors, and children who turn 18 while waiting for release are deported.

Forcing an Impossible Gambit

There are three family detention centers in the U.S.:  Berks, South Texas (Dilley), and Karnes County Family Residential Centers. ICE is forcing families in these centers to make an unimaginable choice: stay in indefinite detention with their children or relinquish their children into the custody of ORR. Let that sink in for a moment. Forcing parents to pick between indefinite detention or losing their children.

Can they do that?

As Amnesty International wrote, “Instead of choosing to release families together, as it has the legal authority to do and in fact historically did, ICE chose to pursue the family separation option during COVID-19.” In addition to this being an impossible choice, it also goes against the concept of family unity as described in the Refugee Convention and the standards laid out in the Flores Settlement Agreement.

Putting the Players at Risk

Even as stay-at-home orders were extended across the nation and public events were cancelled, immigration court hearings for children were still taking place. On March 24, EOIR issued new guidance “proclaiming that in Harlingen, Baltimore, San Antonio, and Chicago detained children must attend immigration court in person.”

Is that safe?

Even though most MPP and immigration hearings have been postponed, hearings for individuals in detention are still taking place. Advocates have called for EOIR to postpone immigration hearings to protect both the migrants and the staff working on their cases. Children in detention could be released to sponsors or less restrictive facilities where they are at lesser risk to be infected. The haphazard management of court hearings by EOIR puts everyone at risk.

Won’t they just not show up in court?

Not if history is a guide. When the policy of releasing families or unaccompanied children to sponsors was in place, 98% met their obligation to appear in court for their asylum cases, so there is no need to put their health at risk by keeping them in detention.

It’s Time to Put the Needs of Children First

The COVID pandemic has been a painful time for everyone. Our lawmakers are tasked with creating laws and policies that keep people safe, but right now the most vulnerable children are paying the heaviest price of those actions. No matter the situation, children should never be used as pawns to coerce parents into making unimaginable choices. Now more than ever, migrants and asylum seekers should have the right to seek refuge from violence and persecution. Because at the end of the day, this isn’t a game at all.

Take action today and encourage our lawmakers to prioritize the safety and wellbeing of children.

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Santiago Mueckay is the Manager of Federal Government Relations for Save the Children Action Network. His work focuses on Central American migration and protecting children’s rights. He received a Master in Public Policy from the Harvard Kennedy School where he studied international and global affairs, with a concentration on human rights and migration. Before joining SCAN, Santiago worked with Save the Children Germany and with the NYC Business Integrity Commission.