As 2020, a year like no other, has drawn to a close, legal advocates in the children’s immigration field are taking a moment to breathe. With the transition to a new administration less than a month away, there is hope that the relentless onslaught of harmful changes to our immigration system will finally cease. There is also hope that new opportunities to move beyond playing defense will let us position ourselves once again in the direction of progress in protecting vulnerable immigrant children. As we look to the future, however, it is important to reflect on current legal laws and policies related to immigrant children and recognize their broad impact. As outlined below, the current landscape is constantly changing, often confusing, and is negatively impacting children. Without a doubt, there is much work to be done.
Oversights of Apprehension, Detention, Care, and Release of Unaccompanied Children
Apprehension, detention, and screening by Customs and Border Protection (CBP) is the first government point of contact for unaccompanied immigrant children (a legal term defined in 6 U.S.C. § 279(g)(2)) who cross the U.S. border or seek admission at a U.S. port of entry. In May 2019, the entire country learned of the deplorable conditions for children in CBP facilities near the border. These conditions, which included the deaths of six children in CBP custody, were reminiscent of the conditions in which children like Jenny Flores were detained by Immigration and Nationality Services, the predecessor to the Department of Homeland Security (DHS) in the 1980s. Flores’ lawsuit led to the Flores Settlement Agreement (FSA) which governs detention standards and the release of children, and it remains in effect today. The Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 codified some of these protections, including the requirement that unaccompanied children must be transferred out of CBP facilities within 72 hours. In addition to poor conditions, CBP facilities also became ground zero for Trump’s Zero Tolerance policy in 2018, which led to the separation of thousands of children from their parents including hundreds of children who are still separated from their parents today.
Congress has charged the Office of Refugee Resettlement (ORR) with the care and custody of unaccompanied children once transferred from CBP custody. This includes the requirement to detain children in the least restrictive setting, which is centered on the best interest of the child. Due to a ruling of the federal judge who oversees the FSA, these requirements remain in place despite an attempt to overturn them through regulations published in 2019.
Many lawsuits have been filed in federal court in the past few years challenging ORR policies and seeking enforcement of the FSA to ensure the protection of children. For example, shortly after President Trump took office in 2017, advocates challenged an ORR policy that created barriers to obtaining abortion care. After many months of litigation, the government agreed in 2020 to adopt a new policy including Know-Your-Rights notices about the new abortion access policy. In 2018, a federal court enjoined an ORR policy requiring then ORR director Scott Lloyd to personally review and approve release of every child in a secure or staff secure placement. In 2018, counsel filed a separate lawsuit, Lucas v. Azar, to address several violations of the FSA by ORR including the conditions of detention, the unlawful administration of psychotropic medication without consent, the conditions of release, and the denial of access to legal counsel. In September 2020, the ACLU and the government reached a settlement agreement in Saravia v. Sessions providing protections to unaccompanied children who have been released by ORR and then re-detained based on allegations of gang affiliation. Two cases, Duchitanga v. Lloyd and J.E.C.M. v. Hayes, are seeking changes to policies that have created long delays in the release of children to qualified sponsors.
In addition to the above lawsuits, several organizations have provided additional independent recommendations to improve conditions in ORR. The National Center for Youth Law, one of the organizations that represent all children in ORR care through the FSA, released a report in December 2019 highlighting the disparity in lengths of stay at different facilities, the number of large facilities housing children, and the absence of policy to challenge placement decisions. Additionally, the Government Accountability Office and Office of Inspector General published recommendations for ORR oversight. ORR provides an important service for unaccompanied children that is vastly superior to conditions in CBP custody. Advocates recognize this reality; however, they also note that there is much room for improvement. Looking ahead to 2021, the need to revise the CBP screening process to include child friendly practices and child welfare professionals is a priority for many children’s immigration advocates.
Impacts of Trump Administration’s Response to COVID-19 on Immigrants at the Border
On March 20, 2020, in response to the COVID-19 crisis in the United States, the Centers for Disease Control (CDC) released a sweeping order under Title 42, applying to persons at the southern or northern land borders. In effect, the order prohibited the entry of any person who was not a U.S. citizen, lawful permanent resident, or visa-holding non-immigrant, including those asking for asylum. The CDC stated that those who had travelled through Mexico and Canada could bring COVID-19 into CBP holding facilities and other locations, disregarding the fact that COVID-19 was already spreading in the United States and that most asylum seekers were already being forced to stay in Mexico due to the Migrant Protection Protocols (MPP) program (detailed later in this article). The order has had a disproportionate impact on immigrant children who arrive at the border without a parent.
In declarations that DHS and Health and Human Services officials filed in support of the government’s Ninth Circuit stay request in the Lucas litigation, the government revealed that, under the Title 42 expulsion order, between March 20 and September 9, 2020, CBP expelled more than 8,800 “single minors” and approximately 7,000 children who were members of family units or groups. The government also revealed that while CBP immediately expelled nearly 7,000 of those family groups or units and more than 6,500 of those single minors to Mexico under Title 42, CBP transferred more than 600 family units/groups and 2,200 single minors to ICE custody, where many were subsequently held in hotels before being expelled.
Per the Homeland Security Act of 2002 and the TVPRA, unaccompanied children who present themselves at the border are required to be placed in ORR custody and should only be held by CBP for a maximum of 72 hours before being transferred to ORR. In addition, by turning these children around and not allowing them to present their asylum claims, the United States is failing to adhere to the non-refoulement obligations in Article 33 of the 1951 Convention on the Status of Refugees. The practice of turning unaccompanied children away at the border, or placing them in hotels to await their expulsion, contravenes our nation’s immigration laws and longstanding policy. A federal district court in Washington, D.C. agreed in P.J.E.S. v. Wolf, enjoining the administration’s policy as it applies to unaccompanied children. The Trump administration has appealed, but there is hope that the incoming administration will reverse this dangerous policy.
Effects of Immigration Court Changes on Children
Children placed in immigration court removal proceedings (often referred to as “deportation” proceedings) appear before the Executive Office for Immigration Review (EOIR) to have their cases resolved. According to EOIR, since January 20, 2017, the number of immigration judges has increased from 306 to 520, an increase of nearly 70 percent. Still, the immigration court system is overwhelmed, suffering from huge backlogs (1,273,885 cases pending as of October 2020, with 683,693 of them being juvenile cases), inefficiencies in case processing, and insufficient resources to adequately protect the rights of children.
In the past year, EOIR has sought to increase fees related to filings before EOIR and the adjudicating body for appeals from immigration judge decisions, the Board of Immigration Appeals (BIA). The increases raise access to justice concerns because they will affect the ability for some respondents in removal proceedings to seek relief or appeal immigration judge decisions. For example, one regulation effective January 19, 2021, will increase the fee for filing a notice of appeal with the BIA nearly tenfold, from $110 to $975.
Also of concern, in March 2020 EOIR piloted a program in the Houston area to have detained unaccompanied children’s cases heard via video teleconference (VTC) by a judge in Atlanta, Georgia. The pilot program was met with opposition by advocates because VTC hearings are not child-friendly and can affect a child’s right to a full and fair hearing. The judge also granted very short continuances in some instances, calling into question whether immigration judges were being required to complete detained children’s cases as quickly as detained adult cases. This approach is sometimes referred to as a “rocket docket practices,” and they are especially concerning in children’s cases, where legal service providers need time to develop rapport with child clients, many of them survivors of trauma, in order to understand their protection needs in order to fairly present them to adjudicators.
Short continuances to pursue immigration relief, or denials of continuances altogether, however, have become common practice and are highly problematic. Immigration judges have also been limited in their ability to administratively close or terminate removal proceedings. The changes can be attributed to several 2018 attorney general decisions (Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), and Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018)) seeking to restrict an immigration judge’s discretion to manage a docket. Children’s cases are often affected by this shift, as they may require continuances or some other mechanism (like administrative closure or termination of the case) to pause or conclude their removal proceedings. Without more flexibility with these docket management tools, many children seeking humanitarian relief, such as asylum or Special Immigrant Juvenile (SIJ) status (detailed in the penultimate section), may be ordered removed because they will not have the time they need to effectively pursue their case.
Perhaps most concerning given the extremely high stakes in these cases is that despite the efforts of legal service providers, pro bono counsel, and the private bar, more than half of children in removal proceedings appear before the court without legal representation. The appointment of counsel at government expense could benefit all stakeholders involved, including EOIR and DHS, by increasing efficiencies in case processing and thereby reducing costs associated with adjudicating some children’s claims.
Attacks on Asylum and Asylum Seekers
The last four years have been marked by numerous attacks on asylum law and on asylum seekers themselves. As a result of regulatory changes, the attorney general certifying cases to himself to review, policy changes, and new case law, the pathway to asylum has narrowed. Despite asylum law being built on the principle of non-refoulement found in international law, “that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm,” many of these changes have endangered the lives of individuals who need protection most, including children.
There are many reasons why children, either as part of a family unit or as unaccompanied children, flee to the United States and fear return to their home country—has his or her own unique story and reason for seeking asylum and safety. The root causes of migration could include targeted violence because of the child’s or a family member’s race or ethnicity, religion, sexual orientation, political opinion, refusal to become a gang member or a girlfriend of a gang member; because of sexual violence or child abuse; or because a parent, caregiver, or other family member suffered harm.
The number of proposed and final rules and policy changes affecting asylum have been numerous, requiring advocates to quickly adapt and navigate new case roadblocks which limit access for their clients. With many of the changes over the last four years, litigation has played a key role in helping to protect asylum seekers and challenging the administration’s attempts at gutting asylum law protections. In many cases, litigation is ongoing and forthcoming. In fact, in December 2020, the administration issued a final rule scheduled to take effect on January 11, 2021, that will vastly change the asylum system as we know it. The rule will change key definitions and greatly limit access to asylum. Despite thousands of public comments to the proposed rule issued over the summer, there were only few changes incorporated into the final rule. This massive change creates the need for urgent action and focus on asylum by the incoming administration.
The current administration has sought other ways to limit those who could seek asylum, though they are not currently in effect. One attempt was to limit those who could seek asylum based on how and where a person entered the country in what was commonly known as Asylum Ban 1.0 and 2.0. Litigation on this issue is ongoing in some related cases, but these bans are not currently in effect; however, DHS and EOIR issued a recent related final rule attempting to limit access to asylum again. The rule is scheduled to take effect in mid-January. In addition, DHS issued another final rule increasing fees associated with many immigration forms, including introducing a new $50 fee for asylum applications, which would make the United States one of only four countries in the world to charge asylum seekers for humanitarian relief. As a result of litigation, the rule is not currently in effect.
As mentioned above, the attorney general certified decisions to himself for review which resulted in significant changes in asylum law; two key cases, Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) and Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), particularly limited potential relief for asylum seekers. Generally, an asylum applicant must show that she has suffered persecution or has a well-founded fear of persecution on account of at least one of five grounds—race, religion, nationality, political opinion, or particular social group. Both cases involved particular social groups. Matter of A-B- set back years of progress related to seeking asylum based on domestic violence, and Matter of L-E-A- made family-related claims, what was often known as a classic particular social group, more difficult.
The administration implemented the MPP program, also known as “Remain in Mexico,” in January 2019, requiring some asylum seekers on the southern border to wait in Mexico while their claims are adjudicated. The program has impacted thousands and has been fraught with due process barriers and violence against asylum seekers. Notably, the program remains in effect, and the U.S. Supreme Court will review key litigation involving MPP in 2021. President-elect Biden has committed to terminating the MPP program in the first 100 days of the new administration.
Pursuant to the TVPRA, unaccompanied children have the right to seek asylum initially with the asylum office, in a more non-adversarial setting, rather than in immigration court. However policy changes and case law have created more complications in determining who has jurisdiction over their asylum cases. Additionally, many children in removal proceedings have lost their legal status as unaccompanied children because with case law changes, immigration judges now frequently reassess their legal status. With the reassessment, youth lose key due process protections, including the waiver of the typical requirement to file an asylum application within one year of entry into the United States.
Additionally, with an emphasis on form over substance, United States Citizenship and Immigration Services (USCIS) has been rejecting asylum applications if any aspect of the form is blank or incomplete, even when there is a logical reason for the blank space based on information detailed within the form itself. This has caused additional work and problems for legal advocates representing clients and further disenfranchises pro se individuals, including children. The Northwest Immigrant Rights Project, National Immigration Litigation Alliance, and Van Der Hout LLP recently filed a lawsuit to challenge the blank space rejection policy, and USCIS has agreed to pause the implementation of the practice.
In asylum law, the current beacon of hope has been litigation efforts fighting back against these vast and numerous changes. Now, with a new administration on the horizon, many advocates hope that asylum as a form of legal relief and humanitarian protection will again be respected as part of the American fabric and honored as we offer refuge to those fleeing persecution.
To learn more about recent attacks on asylum law and specifically how the changes have impacted unaccompanied children, read CILA’s resource Asylum Law Under Attack: What is the impact on Unaccompanied Children?
Special Immigrant Juveniles in Need of Protection from Removal
One of the most common forms of humanitarian-based immigration relief for children is SIJ status. To qualify for SIJ status, a child must be under the jurisdiction of a state court for dependency or custody proceedings, the state court must find that reunification with at least one of the child’s parents is not viable due to abuse, neglect, and/or abandonment, and must further find that it would not be in the child’s best interest to return to their home country. An SIJ beneficiary can seek Lawful Permanent Resident (LPR) status (i.e. a green card) when a visa is available. The federal SIJ statute was enacted in 1990 to protect children eligible for long-term foster care and the accompanying federal regulations were promulgated in 1993. USCIS issued a Policy Manual for Special Immigrant Juveniles in October 2016. From a denial rate of under 5 percent for SIJ petitions in 2016, the rate increased to over 25 percent in 2018, along with a decreased rate of adjudication. After a rise in agency appeals to the Administrative Appeals Office (AAO) and federal court appeals, USCIS shifted its policy on SIJ petitions by issuing three adopted AAO decisions and a revised Policy Manual bringing the denial rate to under 5 percent once again in 2020.
Over the last five years, there has been an increasing number of SIJ petitions. From 2015 to 2019, USCIS received 95,901—a 475 percent increase from 2010–2014. The increasing number of SIJ petitions can be attributed to both the growing population of children eligible for SIJ status, the increasing awareness of this humanitarian form of immigration relief for children, and increased access to legal representation. Although there is no limit on the number of SIJ petitions filed each year, there is an annual quota on the number of SIJ-based LPR status applications that may be approved. In fiscal year 2019, a little over 5,000 visas for LPR status were issued. USCIS is currently processing LPR status applications that were filed in early 2018 for children from El Salvador, Guatemala, and Honduras. From January 2018 to June 2020, 56,766 SIJ petitions have been filed, and many of these petitioners will have to wait years before they can become permanent residents. For those in removal proceedings, SIJ beneficiaries need protection from deportation until a visa becomes available so they can achieve permanency in the United States.
There is no magic button that will allow a new administration to reverse the harms committed in the previous four years. Litigation has played a key role in protecting the most vulnerable in our immigration system, and numerous lawsuits challenging regulations and policies are currently pending and will remain key. Beyond litigation are opportunities to better protect children and perhaps even to reimagine an immigration system beyond apprehension, care, and adjudication—one that fully recognizes their needs. For advocates, the next four years will surely bring about changes related to children’s immigration law. The hope, and the work, is to ensure that they are the right ones, so that justice for children can be achieved.