Unaccompanied Children in Limbo in the United States’ Immigration System

Joseph Lelliott*

* Senior Lecturer, TC Beirne School of Law, University of Queensland. Thanks go to Ms Rory McFadden for assistance with the research that informs this article, as well as the anonymous reviewers and editors for their helpful comments. As usual, all errors remain the author’s own.

I Introduction

Large numbers of children travel to the United States (‘US’) unaccompanied by their parents or other caregivers and outside legal avenues of migration.1 Most of these children enter the US by crossing the US-Mexico border and originate from El Salvador, Guatemala, Honduras or Mexico.2 Numbers have grown substantially since 2010, with particularly high levels in scal year (‘FY’) 2014 and 2019 (68,541 and 76,020 respectively), followed by a dip in 2020 due to the impacts of COVID-19, before a new record in FY 2021 of 146,925.3 The reasons for migration by unaccompanied children are numerous and complex, with recent analyses citing factors such as corruption, poor socioeconomic and security conditions, climate change, and food insecurity in countries of origin.4

The arrival of these children poses a signi cant challenge to authorities because of their special vulnerabilities, need for high levels of care, and, commonly, claims for international protection. In response, the US government has constructed several legal and policy frameworks to address some of the basic needs of unaccompanied children, such as education, healthcare, and accommodation. These frameworks also shield them from some of the harsher elements of US migration control.5 This includes, for example, limitations on the placement of unaccompanied children in immigration detention.6

Though not always realised in practice, these efforts are laudable and align broadly with calls from international bodies to better protect unaccompanied children.7 Nonetheless, aspects of such frameworks as they relate to children continue to fall far short of best practice and expose children to harm. One example of this, and the focus of this short article, is that the recognition that unaccompanied children require greater protection has not been paired with equivalent efforts to make sure that immigration processes are ef cient, nor to ensuring that pathways to secure and certain legal status are available.8

This article explains how unaccompanied children, referred to as ‘unaccompanied alien children’ in US law,9 are instead confronted with a vast, inef cient, and complex immigration system, in addition to — increasingly during the Trump Administration — roadblocks seemingly designed to frustrate their ability to navigate it.10 The challenges facing these unaccompanied children may be described as an ‘invisible wall’, constructed from bureaucratic hurdles and inef ciencies, gaps in laws and policies, and signi cant shortfalls in access to legal assistance and representation.11 This article observes that some of these realities have led to tens of thousands of unaccompanied children being stranded in this immigration system, ‘waiting in limbo’, for years.12 It concludes with some brief comments on the reasons for the lack of ef cient pathways to secure legal status for

Elizabeth Keyes describes the system for unaccompanied children in the US as one of ‘staggering complexity’; it encompasses interactions with at least six federal agencies and an ever-changing set of laws and policies that are dif cult for even experienced lawyers to fully grasp.13 By way of summary, upon entry, unaccompanied children are, for the most part, apprehended and processed by the US Border Patrol.14 If unaccompanied children are from contiguous countries (Mexico or Canada), and do not meet certain codi ed criteria set out in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (‘TVPRA’) — in brief, that they have a clear fear of traf cking or immediate harm — they may be quickly removed from the US.15 If unaccompanied children are not from contiguous countries, or are and meet the TVPRA criteria, they are transferred to the custody of Immigration and Customs Enforcement (‘ICE’) (also within the Department of Homeland Security (‘DHS’)) and must be placed in the care of the Of ce for Refugee Resettlement (‘ORR’) under the Department of Health and Human Services (‘HHS’), within 72 hours.16 ORR’s ‘Unaccompanied Children Program’ provides for the custody and care of children transferred by Customs and Border Protection (‘CBP’) and ICE.17 Children generally spend a month on average in ORR shelters (although sometimes much longer), before they are transferred to the care of sponsors or, alternatively, placed in long-term care if sponsors cannot be found.18

The CBP places all unaccompanied children in standard removal proceedings under § 240 of the Immigration and Nationality Act of 1965 by serving them a Notice to Appear (a charging document).19 Removal proceedings are carried out by the Executive Of ce for Immigration Review (‘EOIR’), a division of the Department of Justice (‘DOJ’), which hears from the child and the US Government and determines whether the child is eligible for a type of relief from removal, including asylum.20 These proceedings are conducted as ‘adversarial trials’ and the burden is on the child to establish their eligibility for relief,21 in many cases without legal representation (see below).22 Decisions of the EOIR are appealable to the Board of Immigration Appeals, and potentially to federal courts.23 Concurrently, however, US Citizenship and Immigration Services (‘USCIS’) retain initial jurisdiction over asylum applications lodged by unaccompanied children (even if the application is led during removal proceedings).24 While asylum claims are considered by USCIS, children must continue to appear at hearings scheduled in immigration courts. Successful claims before USCIS may end removal proceedings but, in other cases, removal proceedings may also nish before USCIS has completed an assessment.

The complexity of these overlapping responsibilities and competencies is compounded by the different types of immigration relief available to unaccompanied children. As noted above, asylum may be granted by USCIS or through removal proceedings, though USCIS has primary jurisdiction. Unaccompanied children may also apply to USCIS but not to the immigration courts for ‘U status’, which is available to victims of crime, or ‘T status’, which is available to victims of traf cking.25 These statuses require complex applications and may take years to adjudicate. The number available is also capped by the US Congress at 5,000 T visas and 10,000 U visas.26 The complexity and high threshold required for T visas limits their uptake, while the popularity and cap on U visas has led to a substantial backlog of applicants (in 2020, it could take more than 15 years to receive U status).27 Unaccompanied children can also apply for Special Immigrant Juvenile Status,28 which requires a custody determination by a state court with jurisdiction over the child, followed by an application to USCIS. Again, the application process is complex, the number is capped,29 and the status has proved of limited utility for unaccompanied children.30 Finally, many cases are ‘terminated’, which only ends the proceedings on the current charging document and does not confer any status on the unaccompanied child.31 Unaccompanied children whose cases are terminated remain ‘unauthorised’ and without legal status in the US.32

Despite the complexity of the system and its potentially serious consequences, most unaccompanied children are unrepresented by lawyers throughout their interactions with the asylum and immigration systems.33 Many fail to turn up to immigration hearings that are, for most children, ‘overwhelmingly intimidating’, and

large numbers of removal orders in absentia are made.34 As Lenni B Benson notes, ‘[i]n the middle of all of those massive agencies, the child is rarely represented and can easily be stranded within the maelstrom of agency action and inaction’.35 Unrepresented unaccompanied children are far more likely to be removed (around 90% of children) than those that are represented (below 40%), and only a very small number receive legal status in the US.36

In spite of these long-standing issues, the Trump Administration took numerous steps to make it more dif cult for unaccompanied children to navigate the immigration system and erected various barriers to such children successfully resolving claims for protection. As mentioned above, these actions have been described as an ‘invisible wall’.37 They include, inter alia, guidance resulting in the de-prioritisation of unaccompanied child cases before the EOIR,38 dilution of child-friendly procedures in the courts,39 attempts to modify rules that prevent the detention of unaccompanied children,40 and information-sharing between ORR and DHS,41 which may deter potential sponsors fearful of ICE from taking custody of children. The new information-sharing measures were subject to a 2019 study conducted by the Women’s Refugee Commission and the National Immigrant Justice Center, which found that

fewer potential sponsors — including parents, legal guardians, and close relatives such as siblings — are coming forward or completing the sponsorship vetting process out of fear that their information will be sent to CBP or ICE for immigration enforcement purposes. Those who responded to the WRC-NIJC survey also observed: a signi cant slowing in processing time of sponsorship applicants; an exponential increase in the time children spend in ORR custody; and an increased possibility of children being released to alternate, non-family members or distant connections — not necessarily their preferred or safest choice — or remaining in ORR custody for the duration of their immigration proceedings, possibly for months to years.42

Unaccompanied children who remain in ORR care may age out and be transferred into adult detention facilities.43 This treatment has led to at least one lawsuit.44

The consequence of these barriers and complex procedures is prolonged uncertainty for unaccompanied children. Kathryn Clements, Diane Baird and Rebecca Campbell, in a study involving staff working with unaccompanied children in the US Midwest, observed that children’s legal status was a major source of anxiety and depression.45 The fact remains that few unaccompanied children are granted legal status during immigration proceedings. As Sarah Pierce notes, most of those not given such status ‘ultimately remain in the United States … remaining in unauthorized status’.46 She goes on to observe that

[i]n sum, the immigration court system has not resolved the unauthorized status of the vast majority of unaccompanied children. Most cases are still pending in the courts … the ones that ended in an order of deportation have largely been unexecuted … and of those ending in some form of relief, many children have not received lawful immigration status’.47

Consistent with research from Australia and the United Kingdom (‘UK’), among other countries,48 evidence strongly suggests that the limited status options open to unaccompanied children, dif culties navigating the immigration system and long periods spent in legal limbo in the US all have signi cant negative impacts on children’s wellbeing and long-term mental health.49

III Conclusion: The Tension Between Protection and Deterrence

The procedural realities for unaccompanied children in the US are set against often explicit recognition of their needs and vulnerabilities in US law, policy, and the statements of politicians and government agencies. US laws and policies articulate ostensibly high standards for the care and support of unaccompanied children. For example, those in ORR custody are entitled to placements in the least restrictive settings possible and in their best interests.50 As noted above, statutes provide for various status options, including asylum, T and U visas, and special immigration

juvenile status, though in practice they are often dif cult to obtain, especially for children without legal representation, making the ‘promise of protection illusory’.51

These contradictory responses are, quite arguably, attributable to the overriding desire of the US Government to deter and control irregular migration, the animus of many in Congress towards migrants who arrive outside legal avenues and the uncomfortable place that unaccompanied children inhabit within these dynamics. As Francesca Meloni and Rachel Humphris have observed in the UK context, unaccompanied children are at once ‘vulnerable children deserving protection according to international standards’, but also ‘risky migrant youth representing a threat to national security’.52 States, including but certainly not limited to the US, have tended to address this tension with ‘targeted policy concessions to accommodate rising internal and international concerns relating to the treatment of child migrants’,53 such as by restricting the use of immigration detention, while still ensuring that, for many, legal status and long-term secure residence remains unattainable. This, in turn, ensures that States can maintain systems that serve the goals of migration control, whether by discouraging or preventing children from persisting with claims for international protection, deterring other children from arriving or, as it appears in some cases, stalling children’s applications for permanent stay until they reach adulthood and are easier to remove.54

This dynamic also broadly aligns with what Vasileia Digidiki and Jacqueline Bhabha have described as a ‘blindness’ to children’s rights beyond those required for ‘basic survival’, an approach that commonly places children in situations of legal limbo;55 in effect, a ‘labyrinth of liminality’ and uncertainty.56 Large numbers of unaccompanied children around the world are stranded in limbo where the legality of their stay in a state is precarious.57 The deleterious effects of these situations are subject to growing attention, particularly the serious consequences for young migrants’ mental and emotional wellbeing and healthy development, and, in turn, the need for protection of the rights granted to them under international law.58 In Australia, for instance, the United Nations Committee on the Rights of the Child expressed serious concern in 2019 for migrant children left ‘in limbo for an undetermined period of time’ with ‘inadequate mechanisms’ for monitoring their wellbeing.59 The Australian Human Rights Commission, meanwhile, has commented on the ‘ongoing uncertainty’ and ‘negative mental health outcomes’ that ow from a precarious legal status.60

Viable pathways to resolving the tension between the protection of migrant children and the deterrence of irregular migration often seem frustratingly out of reach. States around the world continue to strengthen border control measures and explore novel (and sometimes arguably unlawful) approaches to preventing the arrival of irregular migrants, despite calls by a host of international bodies, non-government organisations and experts to protect the rights of children caught up in these mechanisms. Nonetheless, the argument that children’s welfare must come rst must continue to be pressed, prosecuted and supported by the ongoing and tireless efforts of advocates on the ground to improve the lives and defend the interests of unaccompanied children.

1 UNICEF, Building Bridges for Every Child: Reception, Care and Services to

Support Unaccompanied Children in the United States (Report, February 2021) 15. 2 William A Kandel, Unaccompanied Alien Children: An Overview (Congressional

Research Service Report No R43599, 1 September 2021) 4–5. 3 Ibid 3–5; ‘Southwest Land Border Encounters’, US Customs and Border

Protection (Web Page, 14 September 2022) <https://www.cbp.gov/newsroom/ stats/southwest-land-border-encounters>. 4 For an overview, see Kandel (n 2) 2. 5 See, eg, United States Department of Health and Human Services, ‘ORR

Unaccompanied Children Program Policy Guide’, Office of Refugee

Resettlement (Web Page, 31 October 2022) <https://www.acf.hhs.gov/orr/ policy-guidance/unaccompanied-children-program-policy-guide>; William

Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L No

110-457, Stat 5043 (2008) (‘TVPRA’). The Act deals with ‘unaccompanied alien children’ irrespective of whether they are victims of traf cking in person. 6 8 USC § 1232(c)(2)(A). See also Flores v Meese: Stipulated Settlement

Agreement Plus Extension of Settlement, 934 F 2d 991 (CD Cal, 1997). 7 See, eg, Committee on the Rights of the Child, General Comment No 6:

Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, 39th sess, UN Doc CRC/GC/2005/6 (1 September 2005); Of ce of the United Nations High Commissioner for Refugees, ‘Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum’ (Guidelines, February 1997). 8 See Joseph Lelliott, ‘Unaccompanied Children in Limbo: The Causes and

Consequences of Uncertain Legal Status’ (2022) 34(1) International Journal of

Refugee Law 1, for a more detailed analysis outside of the United States (‘US’) context.

9 The term ‘unaccompanied alien child’ is de ned in 6 USC § 279(g)(2) as being a child who: (A) has no lawful immigration status in the US; (B) has not attained 18 years of age; and (C) with respect to whom there is no parent or legal guardian in the US; or no parent or legal guardian in the US is available to provide care and physical custody. 10 See Shani M King, ‘Child Migrants and America’s Evolving Immigration Mission’ (2019) 32 Harvard Human Rights Journal 59, 59–61. 11 Amanda Holpuch, ‘How Trump’s “Invisible Wall” Policies Have Already Curbed

Immigration’, The Guardian (online, 15 January 2019) <https://www.theguardian. com/us-news/2019/jan/15/invisible-wall-trump-policies-have-curbed-immigration>. 12 Catalina Amuedo-Dorantes and Thitima Puttitanun, ‘Undocumented Youth in

Limbo: The Impact of America’s Immigration Enforcement Policy on Juvenile

Deportations’ (2018) 31(2) Journal of Population Economics 597, 617. 13 Elizabeth Keyes, ‘Evolving Contours of Immigration Federalism: The Case of

Migrant Children’ (2016) 19 Harvard Latino Law Review 33, 35. 14 Some arrive at of cial Ports of Entry and are processed by the Of ce of Field

Operations (‘OFO’). Both the US Border Patrol and OFO fall within Customs and Border Protection (‘CBP’), an agency within the Department of Homeland

Security (‘DHS’). See Kandel (n 2) 7. 15 8 USC §§ 1232(a)(2)(A)–(B), 1232(a)(4). 16 Ibid § 1232(b). Note that minors apprehended in the US interior are placed in

Immigration and Customs Enforcement custody pending transfer to the Of ce for Refugee Resettlement. 17 Administration for Children and Families, United States Department of Health and

Human Services, ‘Unaccompanied Children (UAC) Program’ (Fact Sheet, 22 January 2021)<https://www.hhs.gov/sites/default/files/uac-program-fact-sheet.pdf>. 18 Kandel (n 2) 11. 19 Immigration and Nationality Act of 1965 § 240, 8 USC § 1229a (1968). 20 Lenni B Benson and Claire R Thomas, ‘Procedure De cits in Protection for

Immigrant Children in the United States’ in Mary Crock and Lenni B Benson (eds), Protecting Migrant Children: In Search of Best Practice (Edward Elgar

Publishing, 2018) 334, 342–3. 21 Ibid 348. 22 Shani M King, ‘Alone and Unrepresented: A Call to Congress to Provide Counsel for

Unaccompanied Minors’ (2013) 50(2) Harvard Journal on Legislation 331, 339–41. 23 8 USC § 1252. See also Benson and Thomas (n 20) 349. 24 Daniel Braaten and Claire Nolasco Braaten, ‘Children Seeking Asylum:

Determinants of Asylum Claims by Unaccompanied Minors in the United States from 2013 to 2017’ (2021) 43(2) Law & Policy 97, 99–100. 25 8 USC §§ 1101(a)(15)(T)–(U). 26 Ibid §§ 1184(o)(2)–(3), 1184(p)(2)(A). 27 Abigail F Kolker and Kristin Finklea, Immigration Relief for Victims of Trafficking (Congressional Research Service Report No R46584, 28 October 2020) 6, 9. 28 8 USC § 1101(a)(27)(J). 29 Ibid § 1152. 30 See David B Thronson, ‘The Legal Treatment of Immigrant Children in the United

States’ in Mary Crock and Lenni B Benson (eds), Protecting Migrant Children: In

Search of Best Practice (Edward Elgar Publishing, 2018) 259, 264–7. 31 Executive Of ce for Immigration Review, ‘Executive Of ce for Immigration Review:

An Agency Guide’ (Fact Sheet, US Department of Justice, December 2017) 5. 32 Annie Chen and Jennifer Gill, ‘Unaccompanied Children and the US Immigration

System: Challenges and Reforms’ (2015) 68(2) Journal of International Affairs 115, 121–2. 33 Kandel (n 2) 16–17. 34 Claire Nolasco Braaten and Daniel Braaten, ‘Suffer the Little Children to Come:

The Legal Rights of Unaccompanied Alien Children under United States Federal

Court Jurisprudence’ (2019) 31(1) International Journal of Refugee Law 55, 82. 35 Lenni B Benson, ‘Administrative Chaos: Responding to Child Refugees: US Immigration Process in Crisis’ (2018) 75(3) Washington and Lee Law Review 1287, 1293. 36 Kandel (n 2) 16–17. 37 See, eg, Holpuch (n 11). 38 Memorandum from James R McHenry III to the Of ce of the Chief Immigration

Judge, 17 January 2018 <https://www.justice.gov/eoir/page/ le/1026721/ download>. The memorandum rescinded a previous memorandum that prioritised cases of unaccompanied children: Memorandum from Of ce of the

Chief Immigration Judge to All Immigration Judges, Court Administrators and all Immigration Court Staff, 31 January 2017 <https://www.justice.gov/sites/ default/ les/pages/attachments/2017/01/31/caseprocessingpriorities.pdf>. 39 Memorandum from Of ce of the Chief Immigration Judge to All Immigration

Judges, Court Administrators, Attorney Advisors and Judicial Law Clerks, and all Immigration Court Staff, 20 December 2017 <https://www.justice.gov/eoir/ le/oppm17-03/download>. This memorandum rescinds and replaces previous, more child-friendly guidelines. 40 Apprehension, Processing, Care, and Custody of Alien Minors and

Unaccompanied Alien Children, 84 Fed Reg 44392, 44525 (23 August 2019).

See Hillel R Smith, Immigration Detention: A Legal Overview (Congressional

Research Service Report No R45915, 16 September 2019) 46–7. 41 Memorandum of Agreement regarding Consultation and Information Sharing in

Unaccompanied Alien Children Matters, United States Department of Health and

Human Services–United States Department of Homeland Security, signed 13

April 2018 (Memorandum of Understanding). 42 Women’s Refugee Commission and the National Immigrant Justice Center,

Children as Bait: Impacts of the ORR–DHS Information-Sharing Agreement (Report, March 2019) 1. 43 Kandel (n 2). See also Emily Stewart, ‘Immigrant Children Can Be Detained,

Prosecuted, and Deported once They Turn 18’, Vox (online, 21 June 2018) <https://www.vox.com/2018/6/21/17489320/unaccompanied-minors-icedetention-family-separation-18>. 44 See, eg, Ramirez v United States Immigration and Customs Enforcement, 310 F Supp 3d 7 (D DC, 2018); Americans for Immigrant Justice Inc v US

Department of Homeland Security (SD Fla, No 1:19-cv-23261, commenced 5 August 2019), cited in Carolina Bolado, ‘DHS Sued For Info on Teens

Transferred to ICE Custody at 18: LAW 360’, Americans for Immigration

Justice (Web Page, 6 August 2019) <https://aijustice.org/2019/08/06/ dhs-sued-for-info-on-teens-transferred-to-ice-custody-at-18-law-360/>. 45 Kathryn AV Clements, Diane Baird and Rebecca Campbell, ‘“It’s Hard to

Explain”: Service Providers’ Perspectives on Unaccompanied Minors’

Needs Based on Minors’ Forms of Immigration Relief’ (2020) 21(2) Journal of

International Migration and Integration 633, 639. 46 Sarah Pierce, ‘Unaccompanied Child Migrants in US Communities, Immigration

Court, and Schools’ (Issue Brief, Migration Policy Institute, October 2015) 2. 47 Ibid 8. 48 See, eg, Angela Nickerson et al, ‘The Association between Visa Insecurity and

Mental Health, Disability and Social Engagement in Refugees Living in Australia’ (2019) 10(1) European Journal of Psychotraumatology 1; Marianne Jakobsen et al, ‘The Impact of the Asylum Process on Mental Health: A Longitudinal Study of Unaccompanied Refugee Minors in Norway’ (2017) 7(6) BMJ Open 1; Elaine

Chase, ‘Transitions, Capabilities and Wellbeing: How Afghan Unaccompanied

Young People Experience Becoming “Adult” in the UK and Beyond’ (2020) 46(2)

Journal of Ethnic and Migration Studies 439. 49 See, eg, Thomas M Crea et al, ‘Unaccompanied Migrant Children in the United

States: Predictors of Placement Stability in Long Term Foster Care’ (2017) 73

Children and Youth Services Review 93, 95; Jayshree S Jani, ‘“Reuni cation Is

Not Enough”: Assessing the Needs of Unaccompanied Migrant Youth’ (2017) 98(2) Families in Society 127; Julie M Linton et al, ‘Unaccompanied Children

Seeking Safe Haven: Providing Care and Supporting Well-Being of a Vulnerable

Population’ (2018) 92 Children and Youth Services Review 122. 50 8 USC § 1232(c)(2). 51 Benson and Thomas (n 20) 355. 52 Francesca Meloni and Rachel Humphris, ‘Citizens of Nowhere? Paradoxes of

State Parental Responsibility for Unaccompanied Migrant Children in the United

Kingdom’ (2021) 34(3) Journal of Refugee Studies 3245, 3248. 53 Rachel Humphris and Nando Sigona, ‘Outsourcing the “Best Interests” of

Unaccompanied Asylum-Seeking Children in the Era of Austerity’ (2019) 45(2)

Journal of Ethnic and Migration Studies 312, 315. 54 See, eg, Catriona Jarvis and Syd Bolton, ‘Protecting Migrant Children in the

United Kingdom’ in Mary Crock and Leni B Benson (eds), Protecting Migrant

Children: In Search of Best Practice (Edward Elgar Publishing, 2018) 239, 248. 55 Vasileia Digidiki and Jacqueline Bhabha, ‘Sexual Abuse and Exploitation of

Unaccompanied Migrant Children in Greece: Identifying Risk Factors and Gaps in Services during the European Migration Crisis’ (2018) 92 Children and Youth

Services Review 114, 117. 56 Carola Suárez-Orozco et al, ‘Growing Up in the Shadows: The Developmental

Implications of Unauthorized Status’ (2011) 81(3) Harvard Educational Review 438, 443, 450. 57 See, eg, the observations in House of Lords European Union Committee,

Children in Crisis: Unaccompanied Migrant Children in the EU (2nd Report of

Session 2016–17, 26 July 2016); Committee on the Rights of the Child, Report of the 2012 Day of General Discussion: The Rights of All Children in the Context of International Migration (Report, 2012) 5, 8. 58 See, eg, Lelliott (n 8); Chase (n 48). 59 Committee on the Rights of the Child, Concluding Observations on the

Combined Fifth and Sixth Periodic Reports of Australia, 82nd sess, UN Doc

CRC/C/AUS/CO/5–6 (1 November 2019) 13. 60 Australian Human Rights Commission, Lives on Hold: Refugees and Asylum

Seekers in the ‘Legacy Caseload’ (Report, 2019) 12.