An Update on Conditions Facing Immigrant Children at the Border

Is there a crisis at the U.S.-Mexico border?

The prevailing narrative is that there’s a new crisis taking place at our borders. But the recent arrival of children seeking safety at our borders is neither new nor unexpected. The arrival of migrants, and our inability to quickly welcome and process them, traces back decades, to immigration laws and policies rooted in criminalization rather than welcoming, and to foreign policy that has failed to address root causes of migration in many of the countries from which people flee—not just at the Northern Triangle, but also at the Caribbean, countries in Africa, South America, and Asia.

Children, families and adults arriving at the border today are also directly connected to the policies of the last four years, during which thousands of families were separated and then deported, hundreds of thousands of asylum-seekers were forced into homelessness along the Mexico side of the U.S. border, and roughly fifty thousand children who sought protection at our border were turned away without a question asked, during a nine-month period in 2020 because of inaccurate and harmful claims that they presented a threat to public health that other travelers did not. Of these 50,000 children, 16,000 had braved the journey to our borders to seek protection alone; another approximately 34,000 thousand were turned away when they sought help accompanied by family. These children and families were returned to the same dangers that they had fled in the first place—including human trafficking and persecution by governments and gangs. The children whose arrivals are now garnering so much attention in the press are in large number these same children, turned away so many times in recent years (with some, but far less, media attention). But migration also continues from home countries, just as it has every year for many years in the past.

The crisis is not the act of migration—it’s how we respond.

To seek asylum is a legal right in the United States. It is also a human right—and for children, one protected by the Convention on the Rights of the Child. Federal anti-trafficking law extends additional, specific protections for children who arrive at the border alone, including the right to be taken into protective custody while their sponsors are located, and to seek permanent protection in the United States, though in highly adversarial immigration court proceedings. The Trump administration made every possible effort (some of them unlawful) to strip these rights from children; its greatest success came when it shut down the southern border—only to asylum-seeking children and families—using COVID as a pretext in  March 2020.

Our country’s response has been dramatically different over the last two months since the Biden-Harris administration has taken over. Not only are children able to come in and seek protection, as they are permitted under law, but we’re also seeing major changes in how federal agencies are moving to reunite children with families in the United States so that children can be released from custody and live in their communities.

Why are children held in “influx” and “emergency intake” sites at the border?

The temporary facilities that the Department of Health and Human Services is creating to receive children are not in the best interests of children. But they are, for the moment, necessary because of decades of policy-making that favored institutional, congregate care settings—typically 100 or 200 beds, but often many hundreds of beds in a single location—over smaller, developmentally-appropriate placements. When the pandemic struck, the danger of those congregate care facilities became even clearer. Moving forward, the federal government will have no choice but to migrate to a system of caring for children in small, community-based facilities or an expanded network of foster placements.

More importantly, after spending years denying that children could be released to their families both safely and quickly, the federal government is finally doing so. Just this week, the government launched a completely revamped process for expediting the reunification of children with parents. Federal officials have publicly discussed a proposal that would prevent unaccompanied children (those without a parent or legal guardian) from being separated from adult relatives (grandparents, siblings, aunts and uncles) at the border, while guaranteeing those same children the legal rights afforded with the “unaccompanied’ designation. These changes will make a tremendous difference in the lives of children and allow us to welcome more children.

What needs to be done to protect children and asylum-seekers?

It’s not that the Biden administration has implemented policies that are creating a new crisis at the border. Rather, the new administration is following the law as it applies to children—and is doing so for thousands of children harmed by the prior administration. (It is not, however, following the law with respect to adults and families, whom the administration continues to unlawfully expel under the guise of the pandemic.) The federal government must apply all possible resources to continue to welcome these children as the law requires, get them to their families, and provide them with lawyers and independent child advocates for their immigration cases.

This is not a time to return to harmful policies that deny protection or delay safety by forcing families and children to wait in Mexico or their countries of origin, where they face persecution, trafficking, abuse, and desperation. It’s time to welcome everyone seeking safety at our borders and to do so with dignity.