Refugee and immigrant children travel to the United States from across the world to reunify with family and to find a safe place to grow up. However, what they often experience at our borders is family separation and detention-like conditions. For those who are able to enter the country, immigration proceedings are protracted and complex, and children are not guaranteed the right to an attorney.
Instead, a child must prove that they deserve to stay in the country while the U.S. government uses its myriad resources to argue against them. If the child loses, they will be repatriated to their country of origin with little regard to their safety. Rather than prioritizing children’s best interests, the government is largely free to adopt whatever approach it finds expedient to advance its political or bureaucratic goals, with little accountability.
Most significantly, there is no requirement in federal immigration law or policy that government officials prioritize what is good for children in all decisions affecting them. While immigration advocates have managed to carve out a few protections for unaccompanied children – children arriving at the border without parents or legal guardians – once they enter federal custody, these are limited in scope. The Flores Settlement Agreement, a consent decree which has been in force since 1997, was just terminated as to HHS in June 2024 and replaced with new regulations. While the consent decree is still in force as to children held in DHS custody, these regulations, known as the ORR Foundational Rule, set minimum standards for the care of children in ORR custody. The Trafficking Victims Protection Reauthorization Act (TVPRA 2008) allows the Office of Refugee Resettlement to appoint Child Advocates to particularly vulnerable unaccompanied children.
Over the last 20 years, the Young Center has served as independent Child Advocate for thousands of unaccompanied children, making best interest determinations (BIDs) in each child’s case. The government is not required to follow these BIDs and only a small percentage of children are appointed Child Advocates.
It is time for this gap in law, policy, and practice to end. Congress should amend the Immigration and Nationality Act and require government agencies to make immigrant children’s best interests, grounded in the Convention on the Rights of the Child (CRC), a primary consideration in any decision that will affect them. They must apply the principle in a way that promotes both children’s right to safety and family unity. Until then, every government agency with responsibility for immigrant children should establish policies and practices that ensure the consideration of a child’s best interests in every decision.