Current State
Current State
There are a very different set of laws and supports offered for unaccompanied immigrant youth under 18 (unaccompanied children) entering the country and those over 18. Youth under 18 are protected by a set of laws governing the care of children where youth over 18 are considered adults and have little to no legal protections or support under law.
Youth under 18, or unaccompanied children as considered by law, must be released from customs and border control custody over to Health and Human Services (HHS) Office of Refugee Resettlement (ORR) within 72 hours of being identified as unaccompanied. (1)
According to federal law and the 1997 settlement agreement in Flores v. Reno, (2) children in HHS care are generally required to be placed in state-licensed and regulated facilities and to receive medical, dental, and mental-health services; education services; recreational opportunities; a legal rights presentation and access to legal services; access to religious services; and case management services. (3) The goal is to release to the least restrictive setting as soon as possible, with the majority being reunited with family or family sponsors.
Before 2012, referrals of unaccompanied children to ORR were generally in the range of 6,000 to 8,000 each year but starting in 2012, referral numbers began growing exponentially, reaching more than 69,000 in FY 2019. These only fell because of COVID-19 and because of the harmful Trump Administration policy of expelling entering unaccompanied youth during the early pandemic, the court ordered a halt to this policy in November of 2020. Since then, the numbers have not gone back to FY 2019 numbers and have exceeded previous monthly highs during the 2019 peak. (4)
These large numbers have led to the use of flex-time detention centers that are not state licensed and have been plagued with mismanagement and abuse. The numbers have also led to unaccompanied children being held in CBP jails awaiting transfer to flex-centers or HHS licensed facilities; these CPB jails at times have been so squalid they have been considered by a federal judge as unfit for human habitation. (5) And during COVID-19 the substandard medical treatment within these facilities led to the death of immigrants. (6)
Once in HHS custody, unaccompanied children still face many hurdles with the lack of adequate oversight and support from HHS. This includes:
Legal custody issues and a lack of oversight and support has led to youth becoming lost and/or exploited after they are released to family or sponsors (7)
Slow reunification process leads to some youth turning 18 while in HHS custody and immediately being turned over to ICE for detention in an adult facility and deportation
Lack of resources for case management and support leads to little time (30 days) and limited services for youth upon release, leaving them extremely vulnerable
Many of the families and sponsors are in immigration processes themselves, meaning they have limited access to health care, economic, and food support to ensure the wellbeing of youth
The previous administration’s family separation policy led to thousands of children and young people being forcefully removed from their parents at the borders. The current administration has promised the creation of a task force and strategies to reunify these families, but many are thought to be lost with little change of reunification.
All of the above is what is offered if a youth is unaccompanied and under 18. If a youth is 18 or over, they are offered no protections or support and are put into the adult system plagued by abuses in detention centers, poor medical support, and little legal protection from deportation back to the very violence they fled.
For those that are released from detention while awaiting immigration proceedings, they are often subjected to intrusive and abusive surveillance by mostly contracted security firms. These practices have led to an over-surveillance and an underinvestment in any community-based services or case management which is proven to be more effective.