Jurisprudence

Why Won’t the Federal Government Release Immigrant Children?

The coronavirus threatens to turn immigration detention centers into a “tinderbox scenario.”

Children read and draw in a playroom as moms look on
Immigrant families at an aid center in McAllen, Texas, on Nov. 3, 2018, after being released from U.S. government detention.
John Moore/Getty Images

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With nearly 3,000 deaths and more than 160,000 infected by COVID-19 in the United States, it’s clear no one will be spared from impacts of the pandemic. In the past week, four children in immigration detention and seven employees of the Office of Refugee Resettlement who work in children’s detention facilities in New Jersey and Texas tested positive for the virus. Doctors working with detained immigrants have warned members of Congress that immigrant detention centers pose a “tinderbox scenario,” where social distancing precautions are impossible.

Two separate lawsuits are asking federal courts to force the release of unaccompanied children as well as families in immigrant detention, citing the grave health risks of contracting the coronavirus and spreading the disease. These risks are particularly serious because of the confluence of factors in family detention centers: crowded quarters, limited cleaning supplies, and the influx of new families into the detention centers. While it is understood children are usually less at risk of serious complications from COVID-19, a handful of children in the U.S. with COVID-19 have died in the past few days, and children may be more likely to more rapidly spread the disease.

Instead of a public health–oriented response to COVID-19 in the immigration legal system, we are seeing political opportunism. The Trump administration is using the virus as an excuse to swiftly deport unaccompanied minors at the border, despite laws that require that children be allowed to have their cases heard first by an immigration judge. Similarly, the Department of Justice is defying public health guidelines by forcing judges, attorneys, and immigrants to appear in select immigration courts across the country, despite positive COVID-19 tests from court personnel and risks inherent to crowded courtrooms, in order to continue deportation proceedings.

This mistreatment of children is not new. Before the outbreak, children were finding themselves in an increasingly punishing immigration legal system—where they had been separated from their parents, detained in record-breaking numbers for longer periods of time, and held in shocking and abusive detention conditions, including “dog cage” holding cells without mattresses, overflowing toilets, and frigid temperatures. Children do not have to be held in these conditions; unaccompanied children can and should be released more expeditiously to live with family in the U.S., and children detained with parents could be released as a family unit to pursue their legal case outside of detention.

Detained children have experienced forced hunger, dehydration, and sleeplessness. Holly Cooper, an attorney representing detained children, stated: “In my 22 years of doing visits with children in detention I have never heard of this level of inhumanity.” One 15-year-old boy, detained at the jail-like Shenandoah Valley facility, wrote “I want us to be treated as human beings.”

As a law professor and immigration attorney for more than a decade, I have seen firsthand how the immigration system mistreats children. In a recent law journal article, I argue adultification bias can help explain the mistreatment of immigrant children, who are largely teenagers of color. Adultification is the phenomenon whereby children of color are perceived as more adultlike and therefore less innocent than white peers. Adultification has created systemic harm for children of color within public systems like education, juvenile justice, and child welfare. In particular, the disproportionate rates of arrests, adjudications, and sentencing for children of color within the juvenile justice system has been studied closely.

Immigration laws were not designed to protect children. In fact, only a few areas of the law consider the special circumstances of children. The Flores settlement sets minimum standards for detaining minors, limited to children under 18. Under Flores, children should be released as soon as possible to family, when feasible. Furthermore, the Office of Refugee Resettlement, not U.S. Immigration and Customs Enforcement, is tasked with the custody of detained unaccompanied minors. According to legislative history, this is because ORR, under the Department of Health and Human Services, has more expertise in child care. Another child-focused measure is the Trafficking Victims Protection Reauthorization Act of 2008, or TVPRA, which expands legal protections for children including in the areas of asylum law and special immigrant juvenile status, a pathway to legal permanet residence and citizenship available for some children. Lastly, the government has issued guidlelines for children’s cases to improve immigration court proceedures.

In most ways, children are treated the same as adults in the immigration legal system. Children, like adults, are arrested by ICE or Border Patrol agents, may be detained, and are put in deportation proceedings. There are no age limits in immigration court—even babies are deported. Children, like adults, have no right to a government-appointed attorney under immigration law, even though studies show a lawyer can make immigrants up to 10 times more likely to win their cases. Children in immigration court are usually forced to represent themselves. Since immigrants have to prove a defense to deportation, a child without a lawyer must complete immigration forms, amass evidence, and make their argument to win.

Since taking office, President Donald Trump has taken every opportunity to warn of the threat of immigrant children, who “look so innocent. They are not innocent.” Meanwhile, White House press releases and fact sheets denounce the few existing child protection measures as “loopholes” that must be eliminated. Trump has repeatedly called for an end to Flores, with the Department of Homeland Security even proposing new rules to allow the indefinite detention of children (child advocates have challenged the new rules, which have not gone into effect). Trump demanded that Congress amend the TVPRA to restrict children’s access to special immigrant juvenile status.

The purportedly child-protection-oriented ORR has morphed toward an enforcement focus, sharing with ICE information from children’s counseling sessions, allowing ICE inside shelters to fingerprint children as young as 14, and making formal and informal agreements with ICE to share fingerprints of children’s potential sponsors, leading to hundreds of arrests of potential sponsors who were trying to claim their children. The administration slashed the court guidance regarding children’s cases, sanitizing prior language about child sensitivity and deleting child protective modifications, such as leniency in granting motions for continuances. Instead, the new guidance advises judges to be “vigilant” that children may in fact be lying about their age or circumstances, despite no evidence of this as a phenomon.

This move in the immigration legal system to treat children more harshly may be a result of adultification bias against immigrant children. These practices are completely out of sync with our understanding of child development. Research shows that children’s brains are still developing, so courts and the public should take their immaturity and special vulnerability into account. The Supreme Court famously proclaimed in the 2012 case of Miller v. Alabama that the state “cannot proceed as though they [juveniles] were not children.” The immigration legal system has a long history of doing just this. By ignoring migrant children’s immaturity and vulnerabilities, the immigration legal system effectively discriminates against children.

We must reimagine an immigration legal system for children. First, we must recognize and undo racist stereotyping of youth of color, exemplified by calling immigrant children “wolves in sheep clothing.” In a reimagined system, all children would have immigration lawyers, their best interests would be taken into consideration throughout the legal system, and children would no longer be detained for months in jail settings. Ultimately, the immigration legal system must stop proceeding as if immigrant children are not children. In this moment, we must heed the calls from public health officials and immigrant advocates to #ReleaseThemAll before facilities are overtaken by COVID outbreaks—for the safety of children, and for the safety of everyone.