Originally published by VOX
Thousands of Twitter users spent the weekend asking #WhereAreTheChildren?
The viral hashtag sprang up in response to a now widely shared New York Times article noting that the federal government had been unable to make contact with 1,475 unaccompanied minors awaiting deportation hearings.
First things first: Despite reports to the contrary, those children are not “missing” or “misplaced.”
Immigration experts point out that these children are not in government custody, nor are they supposed to be. Instead, this is a population of minors who arrived at the US border unaccompanied by parents or adults, were then detained by immigration authorities, and then were largely released into the care of parents and other close relatives.
The government recently tried to reach about 7,600 of these children with a single phone call each. In 1,475 cases, those phone calls went unanswered — the so-called “missing.”
But as Diane Eikenberry, associate director of policy at the National Immigrant Justice Center, puts it, “If you can’t reach somebody after one phone call, you usually would not describe that person as missing.” (You can read a more in-depth interview on the “missing” children here.)
Immigration advocates like Eikenberry aren’t spending a lot of time worried about #WhereAreTheChildren. Instead, they say the real crisis is the Trump administration’s new policy of separating undocumented families apprehended at the US border — a policy that may have gotten conflated with the “missing” children story that went viral this weekend.
Both stories raised concerns about the same issue: how the United States treats children who enter the country without legal status. But advocates worry significantly more about the new policy of separation than the so-called “missing” children. They fear that this policy — which has already led to more than 600 children being separated from their parents — will create traumatic situations for families and overwhelm the very immigration infrastructure put in place to protect these minors.
The real crisis advocates worry about: the separation of migrant families at the border
The Trump administration announced on May 7 that it would begin separating all families apprehended at the border, trying to cross into the United States without documentation.
My colleague Dara Lind has a helpful rundown of how this policy came about:
An increasing share of border crossers seeking asylum come as “family units”: one or more adults with one or more children. (The Trump administration refers to them as “purported ‘family units’” to underline the fact that they could be lying about their family relationship.) And it’s much harder for the government to detain whole immigrant families than it is for them to detain adults.
Federal court rulings have set strict standards on the conditions under which families can be detained. Under the Obama administration, courts ruled that they couldn’t be kept in detention for more than 20 days.
The Trump administration’s solution, now codified in policy, is to stop treating them as families: to detain the parents as adults and place the children in the custody of Health and Human Services as “unaccompanied minors.”
In some cases, according to immigration lawyers, parents separated from their children have begged to withdraw their asylum applications — on the logic that it would be easier for them to reunify their families in their home countries.
Attorney General Jeff Sessions has described this as a “zero tolerance” policy. “If you cross the border unlawfully, then we will prosecute you. It’s that simple,” he said in a statement earlier this month.
When pressed by NPR on whether this policy was “cruel and heartless,” White House Chief of Staff John Kelly told NPR, “The children will be taken care of — put into foster care or whatever.”
For families facing the prospect of children in “foster care or whatever,” the reality can be devastating. Lomi Kriel, a reporter for the Houston Chronicle, recently wrote about a 28-year-old father who was separated from his 18-month-old son last summer, after the pair were apprehended at the southern border, crossing without documentation:
Esteban Pastor hoped U.S. Border Patrol agents would free him and his 18-month-old son after they were arrested for crossing the southern border illegally last summer.
He had mortgaged his land in Guatemala to fund his sick toddler’s hospital stay, and needed to work in the United States to pay off the loan.
Instead agents imprisoned the 28-year-old in July for coming back into the country after having been deported, a felony. They placed the toddler in a federal shelter, though where, Pastor didn’t know. Three months later, in October, the father was deported — alone. His child, he said agents told him, was “somewhere in Texas.”
“I cried. I begged,” he said. “No one could tell me anything.”
Hundreds of these situations are playing out now for families that tried to cross into the United States. The Trump administration estimates that it has apprehended 638 adults trying to cross into the country without documentation since the new separation policy began. They were traveling with a total of 658 children.
This is beyond other family separations that occurred — perhaps as many as 700 of them, according to New York Times reporting — before the Trump administration announced this official change in policy.
And keep in mind that these individuals have not been convicted of crimes. Many are arriving in the United States planning to seek asylum from horrific violence in Central America, particularly Honduras, El Salvador, and Guatemala. The United Nations estimates that the number of refugees seeking asylum from these places has increased sixteenfold since 2011.
“We’re a bit in panic mode”
Immigration advocates are worried about what these separations will mean for the minors going forward in the United States. There is the obvious trauma of losing contact with a parent, especially for the youngest children.
“The children we talk to in government custody, their number one concern is often how quickly they can get to the person they see as their family figure,” Eikenberry says. “For young kids, that is all they can think about.”
Those facilities can be a tough place for children to live. “These facilities do have a little bit of an education program, but it’s still federal detention,” says Jennifer Podkul, director of policy at Kids in Need of Defense (KIND), a nonprofit based in Washington, DC, that represents unaccompanied minors in court. “Even low-security facilities have barbed-wire fences around them, and communication with those outside is monitored. Everybody knows that detention is not good for kids.”
Most of these minors are likely to be released from detention into the care of a close relative. This is the goal in the case of children who arrive unaccompanied as well as those separated from their family (although with those recently separated from their family, it may be more challenging as their parent is in government custody).
The government agency that oversees this program estimates that, on average, unaccompanied children spend 51 days in these facilities — and in 2017, 93 percent were released into the care of guardians, largely parents and other close family members.
But even then, the separation of families at the border could mean that this group of children has a worse chance at making a case for asylum in the United States.
Advocates worry about two distinct hurdles. First, the separation policy creates a larger number of unaccompanied minors in the United States — which means a bigger pool of children vying for limited attorney services from the pro bono firms that typically take their cases.
KIND, where Podkul works, is one of those organizations — and it’s already worried about how it will handle the uptick in minors who are facing deportation hearings on their own.
“We’re a bit in panic mode,” says Podkul. “There are very limited organizations that have this specialty and provide these services; less than half of children get representation, and now they’ve just added 600-plus kids.”
That could have real effects for children, as those who receive representation are significantly more likely to win in deportation hearings. One 2014 study found that unaccompanied minors with representation have a 73 percent chance of winning their case, compared to just 15 percent for those without an attorney.
What’s more, Podkul says that children are less able to defend themselves against deportation hearings when they aren’t able to contact their parents.
The parents, for example, likely know better why they believe their children ought to be given asylum in the United States. They’re more likely to be carrying the paperwork to make that case too.
“These cases get a lot harder when these kids are separated from an adult,” says Podkul. “If a child has traveled with an adult, the parent often knows the full story of why they’re seeking asylum. They have documents like birth certificates or police reports. But once these kids are separated, they’ve lost communication. It makes our job a lot harder.”
Why the 1,500 “missing” children aren’t a top concern for immigration advocates
On April 28, Steven Wagner testified before a Senate subcommittee on homeland security. Wagner runs the Administration for Children and Families, a federal agency that oversees the Office of Refugee Resettlement (ORR).
ORR is responsible for oversight of unaccompanied minors awaiting a court hearing on their immigration status, a process that can take years. And while these minors do spend some time in government-run shelters and facilities after their apprehension, ORR typically attempts to place most children with a family member who agrees to take custody.
In 2017, ORR estimated that these children spent an average of 51 days in a government facility before being released to outside custody (in 2018, that number appears to have risen to 57). Of the 93 percent of kids in detention who were ultimately released to a guardian outside of the government, about half (49 percent) went to their parents, 41 percent to another close relative, and an additional 10 percent to “other-than-close relatives or non-relatives.”
“There is an actual statutory mandate that these children are supposed to be placed into the least restrictive setting,” Eikenberry says. “In almost every case, this is with a family caregiver, not in some sort of detention.”
In late 2014, ORR began to place phone calls to those family caregivers 30 days after the child is placed in the new home. This is what Wagner was describing when he told Congress about what his agency learned from those phone calls in late 2017. Here’s the relevant part of his testimony:
From October to December 2017, ORR attempted to reach 7,635 UAC and their sponsors. Of this number, ORR reached and received agreement to participate in the safety and well-being call from approximately 86 percent of sponsors. From these calls, ORR learned that 6,075 UAC remained with their sponsors. Twenty-eight UAC had run away, five had been removed from the United States, and 52 had relocated to live with a non-sponsor. ORR was unable to determine with certainty the whereabouts of 1,475 UAC.
In other words: 1,475 of 7,635 phone calls to the sponsors of unaccompanied children were not picked up. Immigration advocates don’t find this figure especially concerning. They say there are plenty of reasons why families might miss a phone call, ranging from boring logistics to more widespread fears of the federal government.
“A lot of these families may have a pay-as-you-go phone number,” says Podkul at KIND. “I definitely had times when I couldn’t get ahold of a client for weeks. [There is also] a climate of fear. Parents and families that are undocumented might be scared to pick up the phone.”
Immigration advocates are pretty torn on how aggressively the government should track unaccompanied minors — whether it’s actually a problem that there isn’t more than a phone call made to ascertain this population’s whereabouts.
On the one hand, immigration advocates want to make sure that unaccompanied minors are getting the services and support that they need. Podkul, for example, thinks it’s important to ensure that these children have access to representation as they move through court proceedings on their immigration status.
At the same time, advocates worry about aggressive monitoring of this same population, particularly if the United States wants to use that information as a means to surveil unaccompanied minors in a way to obtain information that could be used against them in deportation hearings.
“It worries me because of all the other ways we see the Trump administration enforcing these types of laws and policies; it serves pretty restrictive ends,” Eikenberry says. “If not done with a more holistic goal of keeping these kids safe and healthy, I definitely fear that lens being turned on children.”