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Protections and Care for Asylum-Seeking Children in the US

United States immigration is a complex and constantly evolving system that is often be confusing for

undocumented immigrants seeking protection in the US. Whether seeking asylum on account of one or more of the

five enumerated grounds laid out in the Immigration and Nationality Act, protection under the Convention against

Torture, or the Trafficking Victims Protection Act, or when seeking protection through the grant of Special

Immigrant Juvenile Status, there are many issues that need to be resolved. Children entering the US are often

detained in prison like conditions. Many reforms ensuring proper attention and assistance for children have not been

enacted. Children seeking asylum in the US need access to medical and psychological treatments and proper legal

services to obtain protection in the US. Although the US has is moving in the right direction, many additional

reforms are needed in order to uphold international immigration law regarding the treatment of undocumented

children.

Thousands of undocumented children, many of whom are seeking asylum, enter the US in violation of US

law. These children are generally seeking refuge from a particular person or a course of events they are unable to

control.1 Some are brought to the US by family, others are smuggled in, and some have managed to make it on their

own. Children from around the world come to the US in hopes of escaping human rights abuses, forced military

recruitment, forced marriages, sex trafficking, and forced or coerced child labor. Others have no choice but to leave

home because of abuse, abandonment, or neglect whether before or after arriving in the US. In some cases children

arrive in the US in search of reuniting with their family members residing in the US.2 Children who come to the US

seeking protection range in age from toddlers to teenagers, all of whom are faced with a confusing legal system they

are often left to deal with alone.3 Many of the children arriving in the US are in need of medical and psychological

treatment because of their long and difficult journey, traumatic events or the separation from their loved ones.4

Until 1875, the US government had only limited control over immigration, and free immigration was

generally encouraged.5 ―The question whether Congress had power over immigration under the Commerce Clause—

a question tied up as much with the debates over slavery as with concerns over general immigration—was for a long

time unresolved.‖6 One of the earliest court cases dealing with the issue, New York v. Miln, challenged a New York

State Law requiring all foreign nationals coming into the port of New York to be reported.7 New York defended its

law, claiming that if the court were to invalidate the law that ―it would affect many southern states‘ restrictions on

entry and passage of free blacks,‖ but ship Captain George Miln ―argued that the reporting requirement affected

foreign commerce, a field where Congress held exclusive power.‖8 However, Miln‘s Commerce Clause argument

was rejected by the court. Ten years later, the view of the court changed. In 1892, Justice Horace Gray in the case of

1Florida Immigrant Advocacy Center (FIAC). ―Unaccompanied Minors Today.‖ 1. 2 Andrew Morton, and Wendy A. Young. ―Children Asylum Seekers Face Challenges in the United States.‖

(Refuge: Canada’s Periodical on Refugees, 2002), 2. 3 FIAC, 1. 4 Morton and Young, 14. 5 Shayana Kadidal. ―Federalizing Immigration Law: International Law as a Limitation on Congress‘s Power to

Legislate in the Field of Immigration.‖ (Fordham Law Review, 2008), 510. 6 Kadidal, 511. 7 OYEZ: U.S. Supreme Court Media. ―New York v. Miln, 36 U.S. 102‖ (1837), NP.

8 Kadidal, 511.

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Nishimura Ekiu v. United States laid out the principle the Congress‘ power over immigrants was determined by

international law. ―Every sovereign nation has the power, as inherent in sovereignty, and essential to self-

preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon

such conditions as it may see fit to prescribe.‖9 Once this decision was issued, Congress effectively took control of

immigration policies in the US and has since created a progressively complex system of laws and continuing

reforms.

Now, children who come to the US in hopes of seeking asylum or other forms of legal status are faced with

many hardships, both personal and legal. In many cases, children are forced to relive distressing experiences in front

of an interviewer responsible for determining their initial eligibility to receive an asylum hearing. If, as is often the

case, the child does not have a guardian in the US, they are usually detained for a period of 60 days before their first

immigration hearing,10 and can be held for a year of more while being processed through the immigration system.11

Although the situation has improved under the oversight of the Department of Homeland Security‘s Office of

Refugee Resettlement (ORR) Division of Unaccompanied Children‘s Services (DUCS), many issues related to the

treatment and available resources, such as access to education, still exist. When access to education is provided,

classes are often in house, which does nothing in the way of exposure to US educational culture. Asylum-seeking

children would be better off if the US followed the examples of Western Europe and Canada where ―children with

pending immigration proceedings are often integrated into the local communities and attend school with local

children.‖12 Issues currently associated with the treatment and care of refugee children stem from lack of financial

support and former policies and practices that have been carried over from policies the policies of Immigration and

Naturalization Service (INS), which had the contradictory task of both providing custodial care for the child while

simultaneously arguing for their removal.13

Before the Homeland Security Act of 2002 which placed the Department of Homeland Security (DHS) in

association with the Office of Refugee Resettlement (ORR) in charge of suspected illegal immigrant children, the

INS had many inherent problems concerning the treatment of children. Due to the backlog of cases and an

inconsistent system for child placement, as many as one-third of children in INS custody spent time in a juvenile

jail, many of whom had not been accused of any crime. Even though children are supposed to be held in the ―least

restrictive setting appropriate‖ they were housed in juvenile or adult detention centers where they were subjected to

the same treatment as those who had been sentenced.14 The children were forced to wear the same uniforms, eat the

same food, and were ―subject to being handcuffed or shackled‖ for the safety of the staff.15 These practices only led

to further psychological and emotional problems for children who had already experienced traumatic events, often

perpetrated by adults.

9 Kadidal, 514. 10 American Civil Liberties Union (ACLU). ―After Being Detained for Five Years Without Bond Hearing,

Immigrant To Get Day In Court.‖ (2009), NP. 11 Morton and Young, 14. 12 Christopher Nugent, ―Whose Children are These? Towards Ensuring the Best Interests and Empowerment of

Unaccompanied Alien Children.‖ (Public Interest Law Journal,2006), 225. 13 Morton and Young, 14. 14

Morton and Young, 14. 15 Morton and Young, 14.

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The Homeland Security Act effectively put the DHS in charge of detaining unaccompanied minors before

notifying and transporting the children to the care of the ORR, however, the DHS is responsible for prosecuting

removal cases as well as repatriating children upon an order of removal or grant of voluntary departure.16 Yet it is

the ORR, a direct subsection of the DHS, whose job is to place and care for the children during this procedure.

Although the DHS provides better care for the children, it still often appeals grants of asylum.17

Considering that these asylum cases are decided on a case-by-case basis and the opinion of individual immigration

judges, the DHS still applies very strict enforcement. The common fear of ―opening the borders to other children

seeking asylum based upon novel arguments such as whether street children, gang resisters, and children facing

domestic violence constitute cognizable particular social groups for asylum eligibility‖ led to these DHS policies.18

One major criticism of the DHS‘s implementation of its responsibilities was the methodology used for

determining the age of those who had entered the US illegally and who had no indentifying documentation. When

attempting to determine the age of children, ―the DHS utilized dental and wrist bone forensics,‖19 which was

criticized due to the margin of error. The method of age determination led to the placement of children in adult

facilities where they were ―often detained in remote facilities beyond the reach of attorneys and advocates who

could help them both challenge the age determination and represent them in their removal claims.‖20

Since the summer of 2004, the DHS stepped up expedited removal at the borders and began identifying

children who entered with their parents or other caretakers as unaccompanied alien children and placing them in the

care of the ORR care when detaining the rest of the family. Through this practice the DHS removed children from

their parents and held them in ORR care facilities while the rest of the family was moved to adult facilities. The

problem was assumed to be related to poor planning regarding the implementation of expedited removal along with

the lack of functioning family shelters.21 However, the classification of accompanied children as unaccompanied has

caused a weakness in services for those who actually do arrive without supervision. This practice was recognized in

2006 by the US House of Representatives who ―ordered the DHS to use appropriate detention space to house

families together, release them, or use alternatives to detention.‖22

In comparison to the INS, the ORR has added a variety of housing options such as ―shelter care, staff

secure, foster care, and more innovative secure settings, as well as residential treatment care.‖23 With these types of

available options, the ORR is better able to provide for the ―least restrictive setting appropriate‖ and reduces the

average number of days to 45, a significant reduction considering some children had been detained for up to one

year when the INS had been running the operation.24 Although the ORR has significantly improved the detention

conditions for undocumented children problems still exist due to a lack of available bed space and funding. In some

16 Nugent, 228-229. 17 Nugent, 226. 18 Nugent, 226. 19 Nugent, 229. 20 Nugent, 229. 21 Nugent, 230. 22 Nugent, 230. 23 Nugent, 223. 24

Wendi J. Adelson. ―Special Immigrant Juvenile Status in Florida: A Guide for Judges, Lawyers, and Child

Advocates,‖ (University of Miami School of Law, 2007), 7; Morton and Young, 14.

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areas, particularly along the Southern Border, facilities are used to house over one-hundred children in

institutionalized settings, but at a minimum, these children have access to on-site education and the local community

under supervision.25

Another issue facing asylum-seeking Children in the US is the lack of access to legal representation. Since

the children have not necessarily been accused of committing a crime, they are not entitled to free legal services,

putting children an extreme disadvantage when in court. Although there are non-profit organizations such as the

Florida Immigrant Advocacy Center (F.I.A.C.), based in Miami, that provides pro-bono legal services to these

children, they often lack the funding and outreach necessary to represent all minors seeking asylum. Even with these

nonprofit service providers and the few children who have access to legal representation, less than half of children

seeking asylum in the US are estimated to have any form of legal representation.26 In some cases children have been

sent to court without any guardianship, and no one to protect the children‘s best interest.

If a child is unaccompanied by a parent or other guardian, their asylum cases are handled the same way

they are for an adult, unless they are determined to be a dependent of the state. Then, they become eligible for

Special Immigrant Juvenile Status (SIJS). For children who have not been determined as eligible for SIJS, asylum

cases are argued in the adult court system. The single system frequently fails to take into account the special needs

of children due to varying levels of emotional and cognitive ability, and the impact it may have on children‘s ability

to discuss in necessary detail the traumatic experiences they have suffered. 27

Unaccompanied minors also enter the US by way of traffickers who coerce them into forced labor or

prostitution. Worldwide the estimated number of persons trafficked across international borders ranges from seven

hundred thousand to two million annually with nearly half being minors.28 Estimates place the number of children

trafficked into the US at over 7,000 per year.29 Most of the victims arrive in the US from Latin American countries;

however, many from Asian and East European countries also arrive in the US as a result of trafficking.30 Once in the

US, the victims are forced to survive in an unfamiliar culture where escape is extremely difficult due to language

barriers and isolation.31 Undocumented children discovered in this situation may be eligible for asylum, Special

Immigrant Juvenile Status (SIJS), or protection under the Torture Victims Protection Act of 2000.

Many unaccompanied minors are apprehended by the Department of Homeland Security Customs and

Border Protection and placed in custody under the care of the Office of Refugee Resettlement Division of

Unaccompanied Children‘s Services (DUCS) who place them in shelters, group homes, or secure detention

facilities.32 Those who manage to bypass immigration authorities and cannot find shelter with friends or relatives

end up homeless or in dangerous living situations.33

25 Nugent, 224-225. 26 FIAC, 1. 27 Morton and Young, 17. 28 Sally T. Green, ―Protection for Victims of Child Sex Trafficking in the United States: Forging the Gap Between

U.S. Immigration Law and Human Trafficking Laws.‖ UC Davis Journal of Juvenile Law & Policy, 2008),3. 29 Nugent, 219. 30 Green, 4. 31 Green, 4. 32

Nugent, 222. . 33 Adelson, 6.

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The SIJS provision to the Immigration and Nationality Act was enacted by Congress in 1990 to create a

form of relief for ―undocumented children who have suffered parental abuse, abandonment, or neglect.‖34 This

specific section of the Immigration and Nationality Act was passed because Congress recognized the need for

protection and care that was previously unavailable for undocumented children.35 SIJS was designed to benefit

undocumented children recognized as a dependent of a juvenile court, which applies mostly to children who enter

the US alone or have been abused or neglected by their caretakers after arrival. In 1997, the statute was amended to

limit the beneficiaries of SIJS to abandoned, neglected, or abused trafficking victims due to abuse of the system by

those seeking permanent resident status who were otherwise ineligible for SIJS.36

In order for a child to be eligible for SIJS, he or she must be under the age of eighteen, but if the application

for SIJS is expected to be pending past the child‘s eighteenth birthday, an extension of jurisdiction may be

available.37 The undocumented child must also satisfy three requirements. First, they may receive the consent of the

DHS to the juvenile court‘s jurisdiction over dependency hearings if the undocumented child is in the custody of

DHS. Second, a state court may deem the undocumented child eligible for SIJS, meaning that the court must declare

the child to be dependent on the court or other state agency or department making the child is eligible for long term

care due to any combination of abuse, abandonment, or neglect, and when it is not in the best interest of the child to

return to their country of origin.38 Finally, he or she may receive an Order Regarding Eligibility, also known as the

Best Interest Order, based on one of four factors: a ruling of dependency by a state court due to abandonment, abuse,

or neglect, a finding that the child is eligible for long term care because reunification with the child‘s parents is not

in their best interest, it is not in the best interest of the child to return to their home country, or the child continues to

remain under the jurisdiction of the court.39 Once the child has been found to be eligible, he or she is issued a J-visa,

allowing them to reside permanently in the US.

Benefits of SIJS include the potential to acquire lawful permanent resident status after five years, which

includes most of the rights granted to US citizens. Once granted permanent resident, the child may permanently live

and work in the US and travel in and out of the country with a US passport. Once permanent resident status is

achieved it cannot be easily revoked, except in the case of a conviction of particular offences.40 However, when an

undocumented child applies for SIJS, immigration officials are aware the child is in the country unlawfully and if for

some reason the petition is not granted, there is a chance that the child‘s file may be turned over to Immigration and

Customs Enforcement who may ―place the child into removal proceedings for deportation.‖41 Even when this is the

case, there may still be other options available, but they are harder to access.

34 Adelson, 4. 35 Green, 10. 36 Green, 11. 37 Adelson, 22. 38 Adelson, 10. 39 Adelson, 11. 40

Adleson, 13-14. 41 Adleson, 14.

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In December 1998, the INS in collaboration with the United Nations High Commissioner for Refugees

(UNHCR) and other refugee and children‘s experts released ―Guidelines for Children‘s Asylum Claims.‖42 These

guidelines make reference to the ―best interest of the child standard;‖ however, the document clearly deems the

standard ―as inapplicable to the substantive determination of a child‘s claim.43 An entire section of the guidelines is

dedicated to building rapport with the child and specific recommendations on how to develop listening techniques

and questioning appropriate to the child‘s level of development. Although an excellent source of information for all

people who work with children‘s asylum claims, the guidelines are non-binding. The guidelines were primarily

developed for use by INS asylum officers who deal with the initial, non-adversarial adjudication of asylum claims.44

In 2000, Congress enacted the Trafficking Victims Protection Act (TVPA), the first human trafficking

legislation in the US intended to prosecute perpetrators, prevent trafficking, and protect trafficking victims. Under

the TVPA, those who meet the necessary requirements are issued a T-visa; however, for unaccompanied victims,

obtaining a T-visa presents limitations for those ―who lack the emotional stamina to self-navigate through the

immigration law procedures.‖45 In an attempt to prevent trafficking, the TVPA focus on the three concepts listed

above. In regard to its focus on prosecution, the act provides ―minimum standards for prohibiting and punishing any

act of sex trafficking.‖46 The focus on protection is based on affording potential victims of trafficking with access to

educational programs aimed at building business skills and economic advancement. This section also calls for an

increase in public awareness through programs which educate US citizens about the slave like conditions and other

human right violations commonly associated with trafficking.47

In order for a sex trafficking victim to be eligible to obtain the protection associated with a T-visa, he or she

must undergo a process in which the Secretary of Health and Human Services in consultation with the DHS and the

Attorney General ―identifies the victim as one who is willing to assist in the investigation and prosecution of their

trafficker and has made a bona fide application under the immigration law and protected status in the form of T-

visa.‖48 However, this does not apply Children. In many cases, children have to relive the details of their trafficking

experience and also face the possibility of having to face their trafficker in court, both of which can be difficult

emotionally and psychologically for the child. In 2003, the TVPA was amended to change the requirement for

cooperation from the age of fifteen to the age of eighteen, but many children are still required to share their stories

with an immigration official and other law enforcement officials even if they are not subjected to doing so in court.

Another step that has been taken comes from the terms of Flores v. Meese handed down by a closely

divided en banc panel of the Ninth Circuit Court of Appeals, 681 F.Supp. 665 (1988).49 The case was brought

against the INS due to the policy of detaining all suspected undocumented immigrant children ―unless the child had

42 Morton and Young, 17. 43 Morton and Young, 18. 44 Morton and Young, 18. 45 Green, 2. 46 Green, 2. 47 Green, 6. 48 Green, 7. 49

Jenny Lisette Flores, et al., Plaintiffs v. Edwin Meese, Immigration and Naturalization Service, Harold W. Ezell,

Defendants (Flores v. Meese), (681 F.Supp. 665, 1988), NP.

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an adult relative or legal guardian available to assume custody.‖50 Flores, et. al filed the suit challenging the policy

of detaining children who posed no risk of flight, had not been found to pose a threat to the community, and had

guardians responsible for temporary custody.51 In the suit, the plaintiffs claimed that the detainment of children

violated the Fifth Amendment right to due process, the equal protection guarantee offered by the Fourteenth

Amendment and the Immigration and Nationality Act.52 There were also claims based on the ―INS‘ failure to

provide prompt written notice to the detainee describing whether bond release conditions had been imposed.‖53

Many of the children held in detention who may have been eligible for release on bail to ensure future court

appearances, were never notified of this option.

The majority of the court determined that although the children may be in the United States illegally, they

were still entitled to ―proof regarding the legality of their detention.‖54 The court also affirmed an important factor

relating to personal liberty in the United States ―is the ability to test the legality of any direct restraint by the

government, guaranteed through the right to seek a habeas corpus writ.‖55 Although the INS argued that because the

plaintiffs were minors there were different liberty interests, making their existing policy a reasonable one, but the

court ruled that the children were constitutionally protected under the due process of law ―in conjunction with any

deprivation of liberty.‖56 The court also made the determination that if children were to be detained, the detention

should be in the ―least restrictive‖ sense possible and that the children‘s age should not be a determining factor for

detention. However, the court continued to allow the INS to make decisions on a case-by-case basis as to whether or

not to detain children who may pose a risk to the public or to themselves.57

The decision in Flores also struck down the INS practice of not giving prompt notification to the child‘s

attorney when the child is moved to a different facility. An exception being ―unusual and compelling

circumstances,‖ in which the attorney must be notified within twenty-four hours.58 This decision wass in response to

the common transfer from facility to facility by the INS, sometimes in the middle of the night, without notifying the

child‘s attorney or other interested parties. By transferring children in this manner, psychological support and

―obtaining the status or aid to which they are entitled‖ became more difficult for the children involved.59

Children seeking protection in the US have the option of applying for asylum on one of the five enumerated

grounds; however, depending on age and cognitive abilities they may not understand why or how they were sent to

the US. ―In order to be granted asylum in the United States, the child applicant must establish that he or she meets

the definition of refugee contained at Section 101(a)(42) (A) of the Immigration and Nationality Act (INA), as

50 Richard A. Karoly, ―Flores v. Meese: INS‘ Blanket Detention of Minors Invalidated.‖ (Golden Gate University

Law Review, 1992), 183. 51 Karoly, 186. 52 Karoly, 186. 53 Karoly, 187. 54 Karoly, 188. 55 Karoly, 189. 56 Karoly, 190. 57 Karoly, 197. 58

Morton and Young, 15. 59 Morton and Young, 15.

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interpreted by Board and Federal court precedent.‖60 The INA defines a refugee as ―any person who is outside any

country of such person's nationality or in the case of a person having no nationality, is outside any country in which

such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail

himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or political opinion‖61 In the case of a

children petitioning for asylum on their own, they are held responsible for the explanation of their situation and are

responsible for proving the motivation of those who persecuted the them on account of the reasons listed above.

When considering the claim of persecution by a child asylum seeker, ―the harm a child fears or has

suffered… may be relatively less than that of an adult and still qualify as prosecution.‖62 Because children are less

physically and emotionally developed and more easily exploited, interpretation is likely to vary. However, the most

important determination lies on ‗account of‘ the component which requires ―the applicant to provide some evidence,

either direct or circumstantial that the harm he or she suffers is connected to the persecutor‘s intention to harm the

applicant, based on the applicant‘s race, religion, nationality, political opinion, or membership in a particular social

group.‖63 An added difficulty often associated with children‘s asylum claims is the lack of access to documentation

to prove their religion, race, or nationality, meaning the claim will has to rest solely upon the child‘s testimony.64 A

child‘s ability to reliably articulate their claim plays a primary role in the determination of whether or not he or she

receives asylum.

Although there are many different ways an undocumented immigrant child can be granted legal status in

the US, making a value judgment for best route to take is nearly impossible as the child‘s particular situation should

determine the route. After the particular facts of the individual child‘s case are determined, a legal advocate should

help the child to decide the best avenue to take. In many cases, the child is never given access to proper legal help

and is often responsible for obtaining such assistance, unless he or she is fortunate enough to find an organization or

private attorney willing to take the case for little to no cost. Whether the child is eligible for a T-visa, a U-Visa,

SIJS, or a remedy by way of an asylum claim, the child is likely to be detained in prison like conditions and will not

be offered the help they need to remain in the US. Whether or not the child came to the US by way of trafficking,

smuggling, with their parents, or made it on his or her own, many rights violations and other issues need to be fixed

to improve the protections offered to children in the immigration system.

Under the current US immigration system, neither accompanied nor unaccompanied children ―who are

directly affected by immigration proceedings have an opportunity for their best interests to be considered.‖65 In

some cases accompanied children are actually worse off because their status is generally determined on account of

their parent‘s eligibility to remain in the US even if conflicting interests exist. As the best ―interest of the children‖

60 Jeff Weiss, United States Bureau of Citizenship and Immigration Services. ―Guidelines for Children‘s Asylum

Claims.‖ (1998), 17. 61 Immigration and Nationality Act (INA), ―INA 101(a) (42) (A).‖ (1952), NP. 62 Weiss, 19. 63 Weiss, 20-21. 64 Weiss, 22. 65

Bridgette A. Carr, ―Incorporating a ―Best Interest of the Child‖ Approach Into Immigration Law and Procedure.‖

Yale Human Rights and Development Law Journal 120 (2009): 123.

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standard is recognized in both international and domestic law, this standard should be permitted when children are

affected by their own or their parent‘s eligibility. When dealing with custody law, every state has recognized the

best interest approach and ―in the context of child abuse and neglect, states have been required since the early 1970s

to provide guardians ad litem for all children in child abuse and neglect proceedings.‖66 The American Bar

Association has also enacted standards that follow these guidelines when attorneys work with children who have

been neglected or abused.

In international law, an important document promoting the ‗best interest of the child‘ standard is the UN

Convention on the Rights of the Child (CRC), a standard which originally appeared thirty years earlier in the United

Nations Declaration of the Rights of the Child.67 However, without US ratification of the CRC the US is not legally

requiremed to apply this standard to children‘s immigration proceedings. On the other hand, this standard has been

applied to SIJS where ―an applicant must be declared a dependent of a juvenile court in the United States, be

deemed eligible and continue to be eligible for long-term foster care, and have been the subject of judicial or

administrative proceedings in which it was determined that it was not in the best interests of the minor child to be

returned to his or her country of nationality or country of last habitual residence.‖68

If the practice of assigning a guardian ad litem to the case of every child in the immigration system existed,

guardians could act as monitors for the child‘s best interest and also help them pursue protection under US law.

Although it is unlikely that the government would be willing to support this system financially, many interest groups

and organizations working towards immigration reform could assist with matching guardians and supplementing

associated costs. If this practice were implemented, asylum-seeking children would have a much better chance of

gaining legal status and the cost associated with continued detention of the child would decrease.

Shortly after Madeline Albright signed the United Nation Convention on the Rights of the Child under the

direction of President Clinton in 1995, there was an eruption of opposition voiced by the American people.69 Many

conservative organizations believed that the convention, primarily drafted by appointees of the Regan and Bush

administrations, sought to destroy the American way of life by allowing children many rights that parents did not

agree with. Although the objection stemmed mainly from the belief that the CRC would obstruct traditional family

values, it must be recognized that children such as those who have become victims of trafficking ―have not benefited

from a common notion of parental rights and family values.‖70 Some child victims have been neglected, abused, and

even sold into trafficking by their parents who are supposed to be responsible for their children‘s care and

protection.

66 Carr, 125. 67 Carr, 127. 68 Carr, 136. 69 Jonathan Todres, Mark E. Wojcik, and Chris R. Revaz. The United Nations Convention on the Rights of the Child:

An Analysis of Treaty Provisions and Implications of U.S. Ratification. New York, NY: Transnational Inc., 2006,

14; T.J. Gunn, ―The Religious Right and the Opposition to U.S. Ratification of the Convention on the Rights of the

Child,‖ (Emory International Law Review 20, 2006), 116-17. 70 Green, 22.

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Ratification of the CRC by the US is an important step as it would signal the ―spirit of protection‖71 for

child victims all over the world. The CRC was primarily drafted with input from the US72 and has been the fastest

and most widely ratified UN convention and now has a total of 191 ratifications. The US is one of three countries

that have not yet ratified the convention. However, due to the power of organizations that continue to slander the

document and take its articles out of context, ignoring its preamble and sections of articles stating that the parent is

the primary decision maker for what is in the best interest of the child, there is little hope that the US will push for

ratification any time in the near future. So long as the disagreement over the articles comes from a notion of political

values more than social need, the US will have to work toward the protection of children under its own laws instead

of laws stemming from the international legal system.

Based on the information about human trafficking and its victims, a reasonable assumption can be made

that many victims of child trafficking will again be in danger if they are returned to their country of origin. This

presumption alone should create better protections for child victims found within the US and should be a basis for

determining which children have the right to stay in the US and which should be sent to another country or different

location in their home country where relatives or other guardians could properly care for and protect the victim from

future danger. ―Children are not dispensable such that this country [the US] can afford to treat any of them, citizens

or otherwise, in a manner that threatens their personhood or exposes them to a threat of further harm, either real or

perceived.‖73 Ultimately, US immigration and other protection agencies should follow international principles in

areas ranging from protection to social integration, by reforming policies and following international laws and by

adjusting how asylum-seeking children are processed and handled by US government authorities.

In a report by Amnesty International in 2003, an estimated one-third of children in the custody of

immigration officials were being housed in prison like conditions designed for the imprisonment of juvenile

offenders.74 Through the report Amnesty ―urges the US government to stop the routine detention of unaccompanied

immigrant children,‖ and states that if children are detained, they should only be detained for the shortest possible

time in a facility that can meet their needs.75

Although the DHS has been able to serve the function of enforcing US immigration law by way of

detaining unaccompanied children and families and conducting background checks on these individuals, the system

is not well organized and does not have sufficient resources to provide for medical and psychological care which

would best be handled by non-profit and other organizations designed to offer specialized care. Many children

seeking protection in the US have experienced traumatic events and have been separated from everything they have

known to get out of a dangerous situation. Even though it is more likely than not that these individuals will have first

contact with the system by way of law enforcement officials, necessary treatment and care should be dealt with first.

71 Green, 22. 72 Todres, 14. 73 Green, 22. 74 Amnesty International USA (AI USA). ―United States of America: Unaccompanied Children in Immigration

Detention.‖ (2003), 21. 75

Areti Georgopoulos, ―Beyond the Reach of Juvenile Justice: The Crisis of Unaccompanied Children Detained by

the United States.‖ (Law and Inequality: A Journal of Theory and Practice, 2005), 122.

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When unaccompanied minors or trafficking victims are found to illegally reside within the US, they

frequently go without the proper care and assistance needed to rehabilitate and reintegrate into a safe environment.

Many of these children have made long and arduous journeys to reach the US and are in need of medical attention,

especially when it comes to children of sex trafficking who are often detained by their captors and forced to live at a

bare minimum level of subsistence and have often been exposed to sexually transmitted diseases and infections.76

Without providing a basic level of medical care for these children, the possibly of further complications on both the

part of the government and the individual themselves exist. A second often-neglected factor that would be better left

to outside organizations is psychological assistance, as many of these children who have entered the US have

suffered through traumatic events, and in the case of unaccompanied minors have also been separated from their

families. Due to experiences of trauma and separation, many children suffer from depression, anxiety, and/or

experience symptoms of posttraumatic stress disorder and require, at minimum, counseling by a trained professional.

When it comes to psychological assistance for children, the methods of treatment must be designed to fit

the specific trauma, depression, or anxiety symptoms the child is showing while keeping in mind the cause of the

problem. If, for example, these children are placed into treatment centers that specialize in a related field such as

prostitution, domestic violence, or immigration, the children will likely be treated similarly to the patients frequently

treated by the organization. However, when dealing with children, the treatments must be specialized to the needs

and give children the opportunity to have a say in the types of treatment they receive and allow them to decide when

they are ready to move on to the next step. During treatment, children are often placed into group therapy sessions

before they are ready to express their feeling and emotions in that setting, further alienating the child and

counterproductive to the treatment of the problem.

When being processed through an organization, as opposed to the DHS, there is a better possibility that the

child will have access to the legal support and information needed to help them navigate their way through the

complex US immigration system. It is critical for the client to understand the basics of US asylum law and

proceedings as well as any options they may have for civil action in the case of victims of trafficking, giving the

clients more time and methods to discover their options and for attorneys to access pertinent information in order to

help the child remain under the protection of the US government.

Once the child has begun to receive medical, psychological, and legal assistance the child then needs to be

placed with a guardian, assuming he or she has been granted legal permission to remain in the country. In the best-

case scenario the child will go to live with a family who will be able to provide proper care and continue to assist in

recovery and reintegration. It is likely that many children, depending on their age, will end up in a group home or

other facility operated by the child welfare system. If this is the case, children may need additional help with

reintegration, especially if they are unfamiliar with American culture. Not only will these children need to be

informed about what to expect, but they may need assistance with language and/or specific subject tutoring to

overcome language barriers, another factor nonprofit and organizations can help the US government provide.

76

International Labor Organization (ILO) and the Center for the Protection of Children‘s Rights Foundation.

―Rehabilitation of the Victims of Child Trafficking: A Multidisciplinary Approach.‖ (2006), iii.

Rothenberg 12

Organizations specializing in providing services to children seeking protection in the US may be able to

assist the government through educational programs for law enforcement officials and other interested parties.

Through these programs, law enforcement could be trained how to recognize and assist unaccompanied or trafficked

children and which organizations to contact for help. These programs should promote community awareness,

especially in areas where trafficking operations have been found and in other areas where immigrants commonly

enter the US.

If the US government works with nonprofit organizations and other entities that specialize in areas of

assistance, the system can be made more efficient and effectively help end some practices that bring unaccompanied

children to the US. When children are able to receive the medical and psychological attention they need, the children

will be better suited to assist the government in the prosecution of smugglers or traffickers and will be able to assist

their attorneys find ways to allow them to have protection in the US. Organizations could prepare immigrant

children prepare to live and survive on their own and train the police and members of the community how to

recognize and assist these children.

Children seeking asylum could benefit from the expansion of the US foster care system and an increase in

the number and quality of facilities that provide them with a place to stay. They would have more access to

―culturally and age appropriate services.‖77 Legal counsel could be provided by the government, as their removal

proceedings go through the legal system. A system allowing for asylum-seeking children to appeal the results of the

government‘s methods of age determination by allowing the child to provide other forms of evidence would help in

the proper placement of these children. However, the best option would be to allow organizations that have the best

interest of the child in mind and are not concerned with outcome of the immigration proceedings to care for the

children, thereby eliminating the conflict of interest.78

Undocumented immigrants are regularly found living with their families most of whom are working within

the US. If the U.S. were to enact legislation similar to the Immigration Reform and Control Act (ICRA) of 1986 and

legalize many of these undocumented workers, these children would eventually gain access to better jobs with

higher pay and allow them to continue to live with their families.79 Legislation along these lines would allow many

undocumented children to continue their education after high school and give them a chance to attend college with

the same benefits as other children. By providing parents with legal status, the children would no longer have to

worry about one day choosing between staying in the US and returning with their families to an unfamiliar

country.80

Immigration provides many benefits to the US. When people come in search of safety and employment,

they provide additional labor and other services to large commercial industries. Despite the fact that the US is a

country traditionally populated by immigrants and the economic benefit they provide, ―immigration law in the

United States has for the last several decades been characterized by a one-way downward spiral, as citizen-voters in

77 Morton and Young, 19. 78 Morton and Young, 19. 79 Sherrie A. Kossoudji, ―Back to the Future: The Impact of Legalization Then and Now.‖ (Immigration Policy

Center: American Immigration Council, 2009), 2, 4. 80 Kossoudji, 4.

Rothenberg 13

federal elections consistently approve ever more draconian laws aimed at keeping immigrants out in the first

place.‖81 Many people feel that immigrants take jobs and resources away from US citizens, but when immigrants

have access to education and opportunities, they are able to give back to the system that supported them. The

diversity of the US is something that helps make the country one of the most desirable places to live.

Although the legalization of a majority of undocumented immigrants is unlikely, especially after the

security concerns after the attacks of September 11, 2001 and the increase in terrorist groups in the Middle East,

immigrants could help strengthen the economy and the well being of the immigrants as well. If the US were to

legalize undocumented immigrants, employers would be forced to pay them minimum wage and withhold federal

taxes. Increased wages would allow immigrants to take care of themselves and their families while also allowing

them to spend their additional income on consumer goods, boosting the level of income for both the government,

through increased tax revenue, and the US economy, through increased purchasing power.

Even though it is unlikely that legislation such as the ICRA will be passed anytime soon there is legislation

focused specifically on children. This legislation known as the ―Dream Act‖ has helped nearly ―5.5 million children

under the age of 18 who live in undocumented households – 1.5 million of whom are undocumented, and one

million whom live in households where every other member of the family is also undocumented.‖82 Most of these

children never have the opportunity to continue their education after high school no matter how well they

performed. Without the benefit of private sponsors or other sources of funding it is difficult for many to afford

college or technical training as they are not eligible for government student loans. After these children have gone

through primary and secondary education at the expense of taxpayers the government makes it difficult for them to

move forward with their education thereby reducing their chances of succeeding to their full potential. By passing

the Dream Act, undocumented children in the US would be eligible to obtain legal status and therefore able to attend

college.83 Legalizing these children ―would be the cheapest federal workforce development and anti‐poverty

program… in history.‖84 However, now this program is at risk of being overturned which would create additional

hardships for both immigrants and US taxpayers.

Many instruments of international law, whether issued by the United Nations or other regional

organizations, recognize the ―right to family integrity and association.‖85 While these rights are seen as non-

derogable and fundamental, it is not particularly obvious as to how these rights ―should translate into practice in

terms of specific restrictions on national power.‖86 The UN Human Rights Committee has determined that states

must have a reasonable framework for deciding whether the states interest in deporting an individual is

proportionate to the interference in the individual‘s family life, something the US frequently disregards as many

individuals are deported without any consideration about how the rest of their family will be affected. In many cases

once legal status has been granted, the government can be petitioned to grant legal status to immediate family

81 Kadidal, 502 82 Kossoudji, 4. 83 Kossoudji, 4. 84 Kossoudji, 4. 85

Kadidal, 515. 86 Kadidal, 515

Rothenberg 14

members, but this is taken into account after the fact as opposed to being a notable factor during the original

determination.

Canada, unlike the US, has incorporated a ―best interest of the child‖ standard to its immigration law and

proceedings.87 Canada and the United States have developed with many similarities in regards to their immigration

laws, as they have both agreed that each provides ―effective protection for individuals seeking protection under the

Convention Relating to the Status of Refugees.‖88 Although both countries have agreed to provide effective

protection to immigrants seeking protection, the ―best interest of the child‖ still has yet to be fully applied to US

immigration law; however, there is a significant difference between Canada and the US when it comes to protecting

asylum-seeking children.

Due in part to the ―best interest standard‖ applied to Canadian immigration law each and every immigrant

child whether accompanied or unaccompanied by a guardian are given a designated representative at the time of the

immigration hearing by the ―member of the Refugee Division making the immigration decision.‖89 The

representative is designated solely to make certain the best interest of the child is taken in to account during the

proceeding. Canadian immigration guidelines allow for accompanied minors to have a separate determination made

on their behalf even when the child‘s claim is under that of their parents or other guardian. In cases where a child is

found to be eligible for asylum, their parent(s) can then apply for a humanitarian and compassionate relief

application where the best interest of the child must also be taken into consideration.90 Therefore, Canadian law

stipulates that if the removal of the parent from the country will in anyway have a detrimental effect on the child, the

parent is allowed to remain in the country with the child.

The US could establish a better system of immigration for children‘s claims by following Canadian

immigration policies. By considering the best interest of the child, the US would be better situated to protect

children needing assistance and protection by providing them with safety during immigration proceedings. ―Such

reforms would eliminate the split among the federal circuit courts on the issue of whether the plight of a child may

be a factor in deciding a parent's claim for relief.‖91 By taking into account the best interest of the child standard that

has been widely recognized by international and other areas of domestic law, the US would be able to provide

effective protection to the children who need it most.

By following the principles of international law, such as those laid out in the International Covenant on

Civil and Political Rights, the Convention Regarding the Status of Refugees, the Convention Against Torture, the

Convention on the Rights of All Migrant Workers and members of their Families, the Protocol to Prevent, Suppress

and Punish Trafficking in persons, Especially Woman and Children, and the Protocol against Smuggling Migrants

by Land, Sea and Air, many improvements could be made to the treatment and remedies available to undocumented

immigrants, especially regarding children. Although the United States has signed and ratified some of these

87 Carr, 145. 88 Carr, 145. 89 Carr, 146. 90

Carr, 147. 91 Carr, 159.

Rothenberg 15

documents, the government has been hesitant to ratify others due to political opinions in opposition to specific

clauses contained in some UN conventions. However, most of the objections are political not moral or ethical.

For the US to continue to lead the way in immigrant protection, current immigration policies need to be

revised. Since the US government began controlling US immigration policy, the system has been plagued with

abuses. The government can work to end abuses by providing additional resources to the governmental departments

responsible for the care and prosecution of immigrants. No matter what form of relief children are seeking, their best

interest should be kept in mind, and by no means should these children be detained in facilities with juvenile or adult

criminals and treated as criminals. When determining forms of relief, children should have the right to decide which

form of relief they seek after receiving a full explanation of which options that have. The US court system must be

proved with the information it needs to make an informed decision and make sure asylum-seeking children are not

deported back to their home countries if it means the children will face any danger. For the government to truly be

successful in caring for and assisting children, it needs to work closely with non-profit and other organizations that

specialize in the care and treatment of children to make sure that undocumented children have access to the medical,

psychological, legal, and integration services they need to have a chance at success and happiness.

Rothenberg 16

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