Four Ways to Increase Protections for Children Arriving at Our Borders

The COVID-19 pandemic laid bare a reality abundantly clear to unaccompanied children: prolonged detention in congregate settings endangers their health. Though it took significant time and litigation, the Office of Refugee Resettlement (ORR) has demonstrated that safe and prompt reunifications are not mutually exclusive. No child should spend more than a few days, or at most a week, in congregate care when they have family with whom they can live or quality foster care homes. Here are four ways we can improve the treatment of children seeking protection at our borders.

1. Expedite reunifications to prevent unnecessary separations

Protecting the safety and best interests of children should not begin when a child arrives at an ORR facility, but should be prioritized from the moment the Department of Homeland Security (DHS) is first in contact with a child. Many children cross the border with relatives who already care for them but are not their parent or legal guardian. When Customs and Border Protection (CBP) encounters such a child, CBP designates the child as unaccompanied under the Trafficking Victims Protection Reauthorization Act (TVPRA). However, rather than separating the child from their adult family member, CBP should ask Department of Health and Human Services (HHS) officials to determine whether the relationship is legitimate and does not pose a risk of trafficking or other immediate danger. If so, the child should be released into the custody of the family member (with the child designated as unaccompanied, which provides critical protections to children during their immigration case). Other children—who arrive without an adult family member—must be immediately moved to ORR custody for identification of an appropriate sponsor.

Without this change, which we believe could be immediately piloted in “joint processing centers” at the border, HHS will continue to receive children unnecessary traumatized by separation from a trusted caregiver capable of serving as a safe sponsor, only to seek a new sponsor or pursue the child’s reunification with the original caregiver after being subjected to government detention.

2. Make community and home-based care the norm, not the exception.

HHS should immediately increase small, licensed, community-based settings for those children who cannot be expeditiously reunified with their sponsors so as to render large facilities and unlicensed, influx placements unnecessary. HHS must also develop policies and reorient its programs so that children can receive services in the community while they live with family instead of keeping them in custody to receive services. This is the model embraced by Congress in legislation reforming child welfare in the U.S.; immigrant children merit the same standards and protection.

3. Safeguard due process through community-based services.

HHS should expand representation to all unaccompanied children facing deportation proceedings. It should also expand access to independent child advocates wherever children are detained or appear in immigration court. Providing these threshold protections is overdue. As an increasing number of children are released from ORR custody with greater speed, federal agencies must invest funds saved from detention into community-based legal, child advocate, and post-release services for.

4. Prioritize children’s best interests in decision-making.

There is no requirement that immigration authorities consider children’s best interests—specifically, the children’s safety and well-being considering their expressed wishes—when making decisions about a child. 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, consistent with existing law.