Rights of Children in the Immigration Process
In recent years, the number of immigrant children arriving in the United States has increased dramatically, with many children from Central America fleeing extreme violence and persecution in their home countries. As a result, the U.S. government is facing serious logistical challenges in dealing with the increased flow of migration. In this time of humanitarian crisis, it is critical that the government’s immigration enforcement objectives be balanced against the need to ensure that these children are treated in a manner that accords with the fundamental American values of fairness and due process embodied in our Constitution and laws, and is consistent with international human rights obligations.
This memorandum summarizes three critical categories of legal protections that must be provided to immigrant children, whether they are travelling alone or accompanied by a parent or guardian, who are apprehended by the government and placed in immigration detention: (1) access to relief in full and fair immigration proceedings; (2) detention in the least restrictive and most humane settings possible; and (3) legal representation in their immigration proceedings. This memorandum also sets forth prescriptions for how the federal government – specifically the Office of Refugee Resettlement (“ORR”) within the Department of Health and Human Services, the Department of Homeland Security (“DHS”) and its subunits, including U.S. Customs and Border Protection (“CBP”), and the Executive Office of Immigration Review (“EOIR”) within the Department of Justice – must treat children in the immigration process in order to comply with the law.
For children, the governing U.S. legal standards come from various overlapping sources. Two of the primary sources of law discussed in this memorandum are (1) the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), which applies to all “unaccompanied alien children” under the age of 18;2 and (2) the 1996 settlement agreement in Flores v. Meese (“Flores Settlement”), which covers all children (whether accompanied or not) under the age of 18 who are in federal government custody. Other sources of law, including statutes, regulations, injunctions, and provisions of the U.S. Constitution, afford further safeguards to immigrant children who are taken into government custody and subjected to removal proceedings.