Getting Kids Out of Harm\u27s Way: The United States\u27 Obligation to Operationalize the Best Interest of the Child Principle for Unaccompanied Minors

Abstract

The government estimates by the end of the fiscal year over 90,000 children will enter the United States. According to the United Nations High Commissioner for Refugees 58% of these children were forcibly displaced and are potentially in need of international protection. However, in U.S. immigration law unaccompanied children are often seen as illegal migrants and law enforcement prioritizes their “alien” status over their status as children. As the crisis escalates, many of these children are being housed at emergency shelters in icebox-cold cells – nicknamed hierleras, Spanish for freezers, with no access to food or medical care, while DHS attempts to establish which children may have an available sponsor in the United States to be released to and initiates removal proceedings against each child without valid immigration status. The only protections for these children are discrete and narrow forms of immigration relief. Such relief depends on if someone such as an attorney identifies the available relief and assists the child with the application process. Yet, children are not entitled to government-funded counsel and must proceed before an immigration judge alone. For other children there is no available immigration relief; but they have witnessed unspeakable horrors and have been the victims of violence and abuse, yet there is no answer to their calls for help. They are not simply migrants crossing international borders; they are emblematic of an international humanitarian crisis rapidly unfolding in Central America. The current crisis on the border has underscored the profound structural deficiencies in our federal agencies to meet the needs of unaccompanied immigrant children – as children. This essay contributes to the ongoing discussion on how to best handle the surge of unaccompanied minors crossing the southern border this summer. Specifically, the essay argues that the United States must provide a solution that both keeps the children in need of international protection out of harm’s way, and is grounded in international human rights law and practice. The best interest of the child principle must be operationalized in all U.S. government responses for children through a congressionally created interagency “Child Protection Corps.” Further, U.S. immigration protections need to flexible enough to create an avenue for a child to remain in this country, if it is not in the best interest for the child to return to his or her home country. Specifically, DHS should consider exercising its administrative prerogatives such as prosecutorial discretion and humanitarian parole to provide children in need of protection with a safe haven. Overall, this essay seeks to specify discrete steps for Congress and the executive branch to take in addressing significant structural gaps in the federal government’s capacity to provide for the best interest of each child in need of international sanctuary