The Young Center promotes change by advocating for incorporation of the best interests of the child standard in immigration law. The Young Center’s best interests policy advocacy is central to our work.
Framework for Considering the Best Interests of Unaccompanied Immigrant Children
On Wednesday, May 25, 2016, the Young Center for Immigrant Children’s Rights at the University of Chicago released the Framework for Considering the Best Interests of Unaccompanied Children, the result of a multi-year dialogue between federal agencies and nongovernmental organizations. This year the government projects more than 70,000 unaccompanied children will arrive at our borders. These are children who come from all over the world. When they are apprehended at the border or present themselves to authorities, they are taken into federal custody, charged with violating immigration laws and placed in deportation proceedings. But unlike other systems for protecting and adjudicating the rights of children, where judges and other decision makers must consider the best interests of each child, there is no such mandate in our immigration law. Instead, children appear in adversarial proceedings, most often without their own attorney, before judges who are not obligated to consider whether there is a parent available to care for the child in home country or whether the child will be safe as a result of decisions made by immigration authorities.
This was the challenge tackled by the Interagency Working Group on Unaccompanied and Separated children—to develop a framework that would allow decision makers to consider the best interests of every child, in a manner consistent with all other immigration laws. The Young Center, with the support of the John D. and Catherine T. MacArthur Foundation, facilitated the work of NGOs, expert practitioners, and federal agencies including the Department of Homeland
Security, Department of Justice, and the Department of Health & Human Services as they set forth criteria for evaluating children’s best interests and recommendations for integrating best interests considerations into all decisions about unaccompanied children. “This report goes far beyond a general call to ensure fair proceedings for children and instead sets forth agency-specific recommendations for both policy makers and individual decision makers, to ensure that every decision about a child accounts for the impact of that decision on the child’s safety and well-being,” commented Professor Andrew Schoenholtz of Georgetown University Law Center. Professor Schoenholtz continued, “The strength of these recommendations is a direct result of the unique, collaborative dialogue between federal agencies and advocates in immigration and child welfare.”
The Framework recognizes that any decision involving an unaccompanied child, from the moment of apprehension through the completion of immigration proceedings, should address the child’s best interests: the child’s safety and well-being, expressed interests, health, family integrity, liberty, development and identity. Consistent with federal and international law, the Framework also recognizes children’s special vulnerabilities and the necessity of considering and giving due weight to children’s views in determining their best interests. Young Center Policy Director Jennifer Nagda observed, “Everyone involved in this effort recognized that proceedings involving children must be different than those involving adults, and thatit is possible to protect children’s safety in a principled
manner that respects the fundamental rights of children as well as the obligations of the federal government.” Maria Woltjen, Director of the Young Center at the University of Chicago said, “Wherever you stand on the immigration debate, we need to recognize that unaccompanied children are among the most vulnerable, and we need to make sure that wherever they land, whether here in the U.S. or in home country, they will be safe.”
The Framework was prepared by the Young Center for Immigrant Children’s Rights at the University of Chicago, with support from the John D. and Catherine T. MacArthur Foundation. The University of Chicago Law School the Georgetown Law Human Rights Institute both supported the publication of the Framework. Copies of the report can be found at Best Interests Framework and at the Georgetown University Law Center’s Perspectives on Human Rights series at https://www.law.georgetown.edu/academics/centers-institutes/human-rights-institute/our-work/research/perspectives.cfm.
Best Interests of the Child Standard.
The Young Center proposes a best interests standard for immigrant children in removal proceedings. The proposed change would incorporate the best interests of the child standard – a universally accepted principle—in the Immigration and Nationality Act (INA). The language would bring our immigration law in line with the child welfare laws of all 50 states, under which the state is required to consider the best interests of the child. International law has recognized the special protection needs of unaccompanied and separated child refugees and asylum seekers for the best part of a century. Both those concerned with refugee rights and those focused on child welfare have identified this group as particularly vulnerable and deserving of international attention. The different measures set out in a range of international instruments were codified into one comprehensive treaty, the Convention on the Rights of the Child, in 1989.
The term “best interests” appears in Sec. 1232 of the Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA). The proposed section would provide a definition to guide the assessment of best interests and thereby ensure best interests language is interpreted and applied consistently throughout the INA, and not a piecemeal consideration. It is important to note that the proposed section requires consideration of the best interests of the child. It does not in any way prohibit Immigration Judges, Asylum Officers, USCBP or USCIS officials from considering other important factors, for example safety to the community or national security concerns. Those and many other factors are, and will continue to be incorporated into the decision-making process.
Best Interests of the Child Visa
The Young Center proposes a best interests visa. The visa would be considered after all other forms of relief are denied (with the exception of voluntary departure). The essential element is a finding that it would not be in the best interests of the child to be repatriated.
Protecting Children’s Right to be Raised by their Parents. The Young Center works on national initiatives to protect the rights of children who have been separated from their parents, and in particular, their right to be raised and cared for by their parents. The Convention on the Rights of the Child, Article 9, specifically protects children against separation from their parents against their will, absent a determination by competent authorities subject to judicial review that separation is necessary for the best interests of the child. In 2010, and again in 2012, Young Center attorneys and law students in the Young Center’s clinic at the University of Chicago Law School submitted an amicus brief in the case of In re CMBR, in which an infant child was permanently separated from his mother after she was detained in an immigration raid. The Young Center’s amicus brief applied United States and international law to highlight that the child’s rights were repeatedly violated when he was adopted by a couple unknown to his mother or family, and argued that he should be returned to his mother. Early this year, the Missouri Supreme Court invalidated the child’s adoption.