Policy Update: Fighting for Immigrant Children's Rights in 2020
About the Young Center’s Policy Program
The Young Center zealously advocates with Congress, federal agencies, and the courts to protect the rights and best interests of immigrant children. In 2020, the country faced a final and significant deluge of anti-child, anti-immigrant policies issued by the outgoing administration. With your support, we grew our team and engaged in record advocacy. We issued comments objecting to nine Trump-era regulations, laying out steps needed to undo each policy. We submitted new declarations in federal court, filed a brief with the U.S. Supreme Court, and submitted testimony with international bodies to stop the practice of trapping families in Mexico and locking children in hotels before expelling them to danger. In our advocacy with Congress, we took a leap forward in bridging the gap between policies for immigrant youth and other children in government custody, securing federal commitments to decrease the size of federal shelters for migrant children, and worked with Congressional offices to protect children’s right to be with family. We issued multiple reports and increased partnerships with advocates in other fields including disability rights, child welfare, and juvenile justice, to advance our vision for fundamental reform of immigration policy.
Stopping the “Expulsion” of Children
In March 2020, under the cover of the pandemic, the Trump administration used the Centers for Disease Control to issue an order that prevented everyone, including children, from seeking protection at the border. Federal law mandates that immigration officials provide migrant children with an opportunity to present their claim to a court before they are turned away, and to be placed in the custody of the Office of Refugee Resettlement where they can pursue reunification with family members in the United States while their immigration case is pending. With its March 2020 policy, DHS violated those laws and treaty obligations to protect those seeking humanitarian protection—not out of concern for public safety (in fact, other countries and public health officials recommended the continued, safe entry of asylum-seekers), but to fulfill the administration’s long-sought plan of closing the border to those seeking safety. By late 2020, the government had turned away 16,000 children and returned them to the same dangers that prompted them to flee in the first place.
While waiting to “expel” these children from the United States, the Department of Homeland Security held more than 577 unaccompanied children in hotels, hidden from public view without any of the protections guaranteed to them under federal law. Hundreds of children spent days, even weeks, in hotel and motel rooms supervised by unknown ICE officials and contractors with no expertise in child development, trauma, or children’s legal rights. When we learned of children being held in hotels, we fought for their transfer to state-licensed programs. Using the media and our contacts on the Hill, we raised awareness about and mobilized our supporters to speak out against DHS holding children in hotels. In a decision finding this policy of hiding children in hotels to be unlawful, a federal judge cited a Young Center declaration and expressed serious concerns over DHS’s failure to provide “qualified, specialized supervision” to children. In late 2020, a federal district judge granted a preliminary injunction that prohibited DHS from turning away unaccompanied immigrant children at the border.
Serving Children Harmed by the Remain in Mexico Policy
Young Center staff meet with families subjected to the Remain in Mexico policy in Matamoros to discuss their legal rights.
For two years, the Trump administration’s Remain in Mexico Policy, ironically known as the Migrant Protection Protocols (MPP), trapped more than 70,000 people, including tens of thousands of children, for months in dangerous conditions in northern Mexico while they awaited hearings on their asylum claims at hastily erected tent courts along the U.S.-Mexico border. The children and families subjected to the policy faced murder, kidnapping, and violence while homeless in Mexico.
Our team witnessed the program’s profound harm to children when our Executive Director, Associate Director, Policy Director, and Child Advocate Program Director spent time in an encampment of asylum-seekers in Mexico in January 2020. After that visit, our team created a hotline to get accurate information to families in the encampment; fought for dozens of individual children who experienced separation from families because of the policy; educated the public and members of Congress through webinars, Hill briefings, and publications; and challenged the program in federal court, including an amicus brief submitted to the United States Supreme Court, which shared the stories of children harmed by the policy.
Ending the Ongoing Practice of Family Separation
In June 2020, we released a report chronicling the full scope of family separation under the Trump administration. Family Separation Is Not Over: How the Trump Administration Continues to Separate Children from Their Parents to Serve Its Political Ends details the work of Young Center Child Advocates to identify and reunify children forcibly separated from their parents and legal guardians before, during, and after the administration’s “Zero Tolerance” policy. The report shows that although “Zero Tolerance” was ended in the face of public backlash, family separation continues to the present day. After the election, transition officials turned to advocates for solutions on addressing this history of separation, and we briefed multiple teams on the scope of the problem and urged the broadest possible remedies—discussions we continue today with officials in the White House and members of Congress. The report is available here.
Sharing Our Vision for an Entirely New System
In October 2020, we released Reimagining Children’s Immigration Proceedings: A Roadmap for an Entirely New System Centered Around Children. With the support of the John D. and Catherine T. MacArthur Foundation, the report reimagines how the federal government could welcome children at the border and adjudicate their requests to remain permanently in the United States. Reimagining is based, in part, on a symposium in which the Young Center brought together experts in child welfare, juvenile justice, child development, immigration law, and international migration. Our goal was to learn lessons from efforts to develop and reform other systems where children’s rights are at stake, and propose a model tailored to children’s needs, capacities, and experiences.
With bold recommendations that include ending adversarial court hearings for all children, prohibiting the deportation of children until the government has proved they will be safe, and extending childhood to the age of 21, the Reimagining report focuses both on process and substantive protections. Other recommendations include: ending the separation of children from trusted adult caregivers including grandparents, adult siblings, aunts, and uncles; commencing immigration proceedings only after children are living with family or placed in a family-like setting; providing attorneys and Child Advocates to all children, at government expense if needed; creating a dedicated corps of government judges and attorneys assigned to children’s cases; and creating a non-adversarial, conference-based, and timely process for evaluating children’s protection claims. You can read this report here.
Conclusion
Before the pandemic, children seeking protection at our borders faced a host of challenges. These included family separation at the border, prolonged and dangerous waits in unofficial refugee encampments, the use of video hearings, and “rocket dockets” for court cases, which denied any chance of a fair hearing; information-sharing with law enforcement that delayed children’s release from custody and exposed families to deportation; and an absence of policies to ensure children are safely repatriated. The onset of the COVID-19 pandemic exacerbated every one of those concerns, nearly overnight. In 2020, the Young Center’s policy team pushed back against each one of these policies, to ensure that children are treated first as children, that they have a fair opportunity to tell their stories, and that they remain with the family members best able to care for them. While a new administration provides many opportunities, our focus cannot be just the undoing of recent policies, but fundamental reform of a system to ensure that each agency in the immigration system treats children as children and incorporates a “best interests of the child” standard in law, policy, and practice.