What no one wants to talk about in the border crisis: unaccompanied children

Former president Bill Clinton said in a recent interview that “there is a limit to how many migrants any society can take without severe disruption.”  

This is not a new concern for Clinton. In his 1995 State of the Union address as president, he said, “All Americans, not only in the States most heavily affected but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country.”

Unfortunately, we still have too many undocumented migrants entering our country. 

Biden administration disclosures in the Biden v. Texas case indicate that the administration already has released more than 1 million illegal crossers into the country, and releases are likely to increase dramatically when Title 42 expulsions stop, which is inevitable. (The current Title 42 policy is predicated on the COVID pandemic, which — at some point — must officially be declared over.)

Presumably, most of the illegal crossers said they were asylum seekers, but that does not make an improper entry lawful; 8 U.S.C. §1325(a) provides that, “Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers” shall be fined or imprisoned for not more than 6 months, or both for a first offense.

This has overwhelmed our immigration courts. As of Aug. 30, 2022, the immigration courts had a backlog of more than 1.9 million cases, and the average wait for a hearing was 798 days — more than two years.

But I am more concerned about how the large numbers are disrupting the administration’s ability to process Unaccompanied Alien Children and place them in safe, appropriate foster homes.

The treatment of unaccompanied children is governed by several statutes and a legal settlement which require the administration to transfer them to the custody of HHS’s Office of Refugee Resettlement (ORR) and allow them to apply for asylum or other forms of relief from being sent home.  

For the first nine years of this program, fewer than 8,000 children were referred to ORR annually. That number rose to 13,625 in fiscal 2012, to 69,488 in fiscal 2019, and it was 122,731 in fiscal 2021. 

In fiscal 2021, approximately 72 percent of the unaccompanied children were over 14 years of age. Countries of origin were approximately as follows: Guatemala – 47 percent; El Salvador – 13 percent; Honduras – 32 percent; and other – 8 percent.

Sponsors are required to undergo background checks and complete a sponsor assessment process that identifies risk factors and other potential safety concerns.

The large increase in referrals that occurred in 2021, resulted in having to detain unaccompanied children for substantial periods of time at overcrowded Customs and Border Protection (CBP) holding centers. To get them out of these centers and into HHS custody as quickly as possible, ORR opened emergency intake sites (EISs)to supplement existing shelters.

Members of Congress, child welfare advocates, and staff at ORR facilities raised concerns about inadequate case management at the Fort Bliss EIS; consequently, the Office of Inspector General (OIG) at HHS conducted an investigation of conditions at this facility.

The OIG issued a report in September 2022, which describes the problems it found at Fort Bliss, such as the following:  

Rapid staffing

ORR had to employ nearly 300 case managers within a month of opening its EIS at Fort Bliss, and it was not able to meet this need with experienced case managers. It had to hire inexperienced managers too.

When inexperienced case managers handle cases without knowing child-welfare best practices, the risk of releasing unaccompanied children to unsafe or simply inappropriate sponsors increases.  

Moreover, in the early months of operation at Fort Bliss, ORR was not able to provide the inexperienced hires with adequate training.

Infrequent communication

Hundreds of children reportedly went weeks without receiving updates from case managers. A case management team member reported finding a list of 700 children who had not been seen by a case manager for approximately 60 days.

This lack of communication contributed to what another interviewee called “a pervasive sense of despair” among children at the facility, who experienced distress, anxiety, and panic attacks.  

Steps removed from screening process

Field guidance issued from March 2021 through June 2021 removed basic safety measures from the sponsor screening process in an effort to expedite the placement process. For instance, it reduced third-party review of the sponsor screening process for ensuring that children are safely released to their sponsors.

Online case management system

Deficiencies in ORR’s online case management system contributed to management delays and potentially increased the risk of release to unsafe sponsors. The deficiencies included crashes, timeouts, and missing data.

ORR may be able to train inexperienced case managers more quickly the next time the number of unaccompanied children surges, but how long will it take? Moreover, this won’t help unaccompanied children who are processed before enough properly trained managers are available.

Other problems

The process doesn’t end when the unaccompanied children are placed with a sponsor. The children are supposed to be sent home if they can’t establish eligibility for asylum or some other form of relief from deportation, and the more there are, the harder it is to do this.

This difficulty is illustrated by the end-to-end outcome information on unaccompanied children in CBP’s Fiscal Year 2020 Enforcement Lifecycle Report: 68 percent of the cases for the 290,000 unaccompanied children who were apprehended between fiscal 2014 and fiscal 2019 were unresolved as of the end of the second quarter of fiscal 2020. Only 28 percent of them were granted some form of relief, and the other 72 percent remained in the United States even if their applications for asylum or other forms of relief were denied. In fact, 16 percent absconded after being served with a final order of deportation or being given permission to leave voluntarily in lieu of being deported.

DHS was only able to repatriate 4.3 percent of them.

The only solution I can think of is to change the laws to make it possible to screen unaccompanied children at locations at or near their own countries in an expanded CAM program to ensure that the ones being admitted to the U.S. have a legitimate basis for asylum or some other form of relief. I would expect this to greatly reduce the number. 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at https://www.blogger.com/blog/posts/2306123393080132994