President Trump appears on Long Island on July 28, 2017. Speaking close to where the gang MS-13 has committed a number of murders, Trump urged Congress to dedicate more funding to border enforcement and faster deportations. (Spencer Platt/Getty Images)

How the Trump Administration is Rewriting the Rules for Unaccompanied Minors

February 13, 2018
by Nicole Einbinder Abrams Journalism Fellow, FRONTLINE/Columbia Journalism School Fellowships

In his State of the Union address two weeks ago, President Donald Trump called on Congress to close “glaring loopholes in our laws” that he said gang members are taking advantage of to “enter the country as unaccompanied alien minors.”

But an assortment of new measures adopted by the administration in the past year reveal that the legal landscape for children who enter the United States as unaccompanied minors is already being quietly reshaped.

Citing the threat of gangs like MS-13, President Trump has taken aim at immigration laws that determine whether minors can stay in the U.S. or be sent back to the countries they fled. His administration has moved to restrict special legal protections that help unaccompanied minors gain asylum, rewritten guidelines for judges in deportation proceedings involving children and opted not to renew funding for a program that had helped thousands secure legal aid.

While immigration advocates fear the administration has made the system increasingly hostile toward unaccompanied minors, proponents of stricter enforcement welcome the changes as a way to address concerns over fraud, illegal smuggling and gangs entering the country.

“It’s not just one agency,” said Jennifer Podkul, director of policy for Kids in Need of Defense, an organization that recruits attorneys to represent unaccompanied minors. “It’s definitely coming from the administration and it’s a coordinated effort across agencies that’s wanting to hinder kids’ abilities to go through the immigration system.”

Since 2014, more than 200,000 unaccompanied minors have come to the U.S., according to data from Customs and Border Protection (CBP). Most of these children arrived from Honduras, El Salvador and Guatemala — three of the deadliest countries in the world due to skyrocketing murder rates and organized crime.

Under current law, when a child from Central America is caught crossing into the U.S. without documents, CBP will designate him or her as an “unaccompanied alien child,” or UAC, if they are under 18 and are not accompanied or met at the border by a parent or guardian.

These minors are given protections to ensure they can’t be immediately returned to their home countries without first having the chance to make their case before a judge. They also have special opportunities to pursue their asylum claims.

For example, after being apprehended and placed in removal proceedings in immigration court, these children are transferred to the Office of Refugee Resettlement (ORR), which determines if they can be placed with a sponsor — for example a parent or relative already in the U.S. — or cared for through a network of ORR-funded care providers. These kids are exempt from certain limitations on applying for asylum, such as a one-year filing deadline required for adults. They also have the opportunity to have their case heard by an asylum officer. If that interview is unsuccessful, their case goes to immigration court, where they are questioned by a government attorney.

“The benefits of getting status as an unaccompanied child migrant is you get to essentially apply for asylum twice,” said Sarah Pierce, a policy analyst with the Migration Policy Institute, a nonpartisan think tank. “It’s also nice because applying for asylum with USCIS [U.S. Citizenship and Immigration Services] is a little less intimidating than applying in front of the immigration court.”

In his first month as president, Trump issued an executive order instructing federal officials “to ensure that unaccompanied alien children are properly processed” and “when appropriate, are safely repatriated in accordance with law.”

The next month, the Department of Homeland Security took a first step toward implementing that order, issuing a memo that called for standardized procedures to review whether children initially designated as unaccompanied minors can continue to receive the protections that come with that designation as they navigate the legal process.

In the memo, the department argued that under current policy, some children in the deportation process continue to maintain their unaccompanied minor status — and the protections attached to it — even if their circumstances may have changed and they no longer meet the definition of a UAC. For example, if the minor was reunited with a parent or guardian or turned 18 years old. “Exploitation of that policy led to abuses by many of the parents and legal guardians of those minors,” according to the memo.

“Five days after the president took office, he issued an executive order that laid out a blue print, and now you’re actually seeing implementation of that blue print,” said Andrew Arthur, a resident fellow in law and policy at the Center for Immigration Studies, which supports tougher immigration laws. “If [unaccompanied alien children] are no longer minors, then they should no longer receive the special treatment that minors receive.”

While the Department of Homeland Security has yet to publish guidance on the how to implement the February memo, the president’s vision for how to deal with unaccompanied minors has begun to surface across the government in other ways.

In September, the Executive Office for Immigration Review, the Justice Department office that oversees the nation’s immigration courts, issued a legal opinion saying immigration judges should have the authority to review whether a minor qualifies as an unaccompanied alien child. Judges “are not bound” by UAC determinations, wrote Jean King, the office’s general counsel, in the opinion, adding that minors may lose their protections “if an immigration judge determines that the respondent no longer meets the definition of a UAC.”

An official for the Executive Office for Immigration Review said the change was simply a clarification of the law. But immigration advocates like Podkul say it is a sharp departure from past practice.

“Before that memo, we never saw any conversation anywhere, either in legislative history or through administrative practice or policy, that would ever give the immigration judge the authority or responsibility for adjudicating whether or not a kid is still unaccompanied,” Podkul said. “It was always that [Department of Homeland Security] designates the designation, and then it sticks.”

In December, the Department of Justice issued another memo to immigration judges, this time replacing guidelines from 2007 on how judges should deal with minors in deportation proceedings. The memo states that unaccompanied alien status is not static, and instructs judges to look out for potential fraud and abuse among minors.

The memo also removes guidelines from 2007 on child-sensitive questioning — for example using short, clear, age appropriate questions, avoiding technical legal terms in questions, as well as a provision that the court should be aware of factors like post-traumatic stress, age, race, gender and cultural sensitivity issues when dealing with children.

“I think right now, all options are on the table and that the president is listening to the operational units who actually have to deal with this flow, which I don’t believe the previous administration did,” said Arthur, of the Center for Immigration Studies. “The Trump administration is really bringing the immigration laws back to where they are, to the way that they’re written.”

Among the other actions taken so far: the Department of Justice decided not to renew approximately $4.5 million in funding for Justice AmeriCorps, a program created three years ago that helped provide legal services to nearly 7,000 unaccompanied minors – amidst a backlog of almost  90,000 children with cases in immigration court as of August 2017, according to data from Syracuse University’s Transactional Records Access Clearinghouse. The EOIR official cited the loss of key leadership and inadequate performance among the reasons for not renewing the funding.

As the impact is starting to be felt from the various changes already in place, other actions are on the horizon. The Department of Homeland Security is proposing to allow asylum officers “to reach an independent UAC determination,” according to an agency memo obtained by FRONTLINE. If approved, the change would be another way for the government to challenge UAC status. It would rescind a 2013 policy determining that once a child is designated as unaccompanied, their status remains in place from the time they are apprehended at the border to the end of their immigration court proceedings.

The proposed change comes despite a 2012 report from a Homeland Security ombudsman that found the process of allowing asylum officers to re-adjudicate UAC decisions “duplicative, inefficient, and more adversarial” for unaccompanied minors.

Jonathan Withington, a Homeland Security spokesman, told FRONTLINE that internal policy deliberations “are ongoing” and there have been no changes yet. “Only Congress can make changes to immigration laws,” he added.

Those changes could soon emerge as Congress begins debate on the fate of the roughly 700,000 young immigrants brought to the U.S. illegally as children but protected from deportation under the Obama-era Deferred Action for Childhood Arrivals policy. The White House has offered a pathway to citizenship for these young undocumented immigrants known as Dreamers in exchange for $25 billion in funding for the president’s long sought-after border wall, as well as more stringent restrictions on immigration.

These include changes to the rules around unaccompanied minors. In an October letter to Congress, the White House said it wanted new rules that would prevent children from being labeled as unaccompanied if they had a parent or relative in the U.S. who could provide care or legal custody for them. The administration also proposed treating children from Central America the same way as children from Mexico and Canada, who under current law are screened at the border, and if no signs of trafficking or fear of persecution are reported, are quickly returned to their home countries without an opportunity to make their case before a judge.

“They’ll just turn them around at the border essentially,” said Rachel Prandini, an attorney with the Immigrant Legal Resource Center, a nonprofit that supports immigrant rights. “I think the current administration is trying to do everything that they can, through policy and through advocating for changes to the law, to strip rights from children.”

Correction: An earlier version of this story said the Department of Justice decided in the summer of 2017 to not renew funding for Justice AmeriCorps. The funding for that program, a partnership between the Justice Department and the Corporation for National and Community Service, expired in September 2017. The story also misidentified Jean King as the Justice Department’s general counsel. King is general counsel for the Executive office for Immigration Review.

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