A Way Forward on Child Refugees

The president can accelerate the process for screening unaccompanied children who are fleeing violence, without sacrificing fairness or due process and without changing existing law.

From left, Raul Amador Sanchez, 7, from Georgia, Alexandra Diaz, 9, and her brother Andy Diaz, 7, both from Baltimore, Maryland, hold up signs as they join their parents during a news conference of immigrant families and children’s advocates responding to President Barack Obama’s response to the crisis of unaccompanied children and families, Monday, July 7, 2014, on the steps of St. John's Church in Washington. (AP/Pablo Martinez Monsivais)
From left, Raul Amador Sanchez, 7, from Georgia, Alexandra Diaz, 9, and her brother Andy Diaz, 7, both from Baltimore, Maryland, hold up signs as they join their parents during a news conference of immigrant families and children’s advocates responding to President Barack Obama’s response to the crisis of unaccompanied children and families, Monday, July 7, 2014, on the steps of St. John's Church in Washington. (AP/Pablo Martinez Monsivais)

Honduras, El Salvador, and Guatemala have become increasingly more violent and inhospitable to children over the past few years. Honduras is now the murder capital of the world, with El Salvador and Guatemala not far behind. In fact, the murder rate in Honduras is now 30 percent higher than in Iraq in 2007, at the height of the insurgency. Gangs and organized criminal enterprises in these countries are increasingly targeting children. Is it any wonder, then, that children are fleeing these countries and heading for wherever they can find safe haven? In this year alone, the United States has seen more than 57,000 children arrive, a 106 percent increase from last year. According to the U.N. High Commissioner for Refugees, or UNHCR, asylum requests in the neighboring countries of Central America from children of these three nations are up 712 percent since 2009.

Finding a solution that helps stem the tide of these arrivals in the United States while still ensuring that children who arrive are protected and have their claims heard is not easy. But it is doable.

The administration can revise the process that these children face, without changing the William Wilberforce Trafficking Victims Protection Reauthorization Act, the law that governs how children in this situation are treated. Fixing the process through administrative action will cut the amount of time that children have to wait to have their claims heard. Reducing the waiting time may also take away some of the incentive to flee in the first place; currently, children spend many months, if not years, in the United States before seeing an immigration judge. Most importantly, such a change will speed up the process while still ensuring that children have full and fair hearings.

The current system

Under current U.S. law, there are two policies for children who arrive here without a parent or guardian: one for children from the contiguous countries of Mexico and Canada and one for children from everywhere else. Children from contiguous countries receive an immediate screening by the Border Patrol to determine whether they are victims of trafficking or would face persecution if returned home. In theory, if a child articulates a fear of return or has been trafficked, he or she is allowed to stay in the country while awaiting a hearing by an immigration judge. But in practice, as the UNHCR has found, the Border Patrol has neither the training nor the ability to adequately screen these children. In many cases, screenings are done in a matter of minutes, without regard for whether the child even understands the process. In the Rio Grande Valley, as Dara Lind of Vox points out, the vast majority of Mexican children were not even asked if they had a fear of returning to Mexico.

Children from everywhere else are apprehended by the Border Patrol and placed into deportation proceedings. Within 72 hours, they must be turned over to the Office of Refugee Resettlement, or ORR, in the Department of Health and Human Services. ORR provides shelter and care for the children and works to place them with a family member or a sponsor while they await their immigration hearings.

But the waiting times to see an immigration judge have skyrocketed for everyone, not just children, with average delays of 587 days, according to the Transactional Records Access Clearinghouse at Syracuse University. These long waits are the result of years of underfunding of the immigration court system: The average backlog in the courts has increased by 120 percent since 2006.

The wrong approach

With up to 90,000 children estimated to arrive this year, a number of proposals by legislators such as Sen. John Cornyn (R-TX) and Rep. Henry Cuellar (D-TX) have proposed changing existing law to prioritize speedy deportations over fair proceedings. These legislators contend that the law’s current requirement that these children receive full immigration hearings, coupled with the long backlogs in these cases, incentivize children to come to the United States.

To speed up the process, legislators such as Sen. Cornyn and Rep. Cuellar believe that children from countries such as Honduras, El Salvador, and Guatemala should be pushed through an expedited screening process more similar to the one applied to children from Mexico. This is a serious mistake. A system that takes years to adjudicate a single case makes no sense, but the failure of that process does not diminish our responsibility to treat all children with care and to give them their day in court. The president has ample authority within existing law to accelerate the process and ensure that children receive appropriate hearings quickly, without sacrificing protections and due-process rights for children.

A better solution

Solving the challenging issues presented by these child refugees will require significantly more resources. The administration has requested emergency funds, and the Senate has introduced a $2.7 billion supplemental funding bill to tackle the problem. This is a good start. The money should be used to increase protections and legal representation for children, to provide more immigration judges and asylum officers to hear their claims, to ensure that ORR has the resources and facilities it needs to care for the children, and to set up in-country processing facilities to give children the ability to make a claim for refugee protections before they leave home.

In creating a policy to deal appropriately with child refugees, the United States should adopt the recommendations discussed below.

Maintain ORR custody. All children who arrive at the border should be turned over to ORR custody as soon as possible. Once in custody, these children should be screened by child welfare specialists, and receive know-your-rights trainings that explain the legal requirements for making a case for protection. These children should remain in ORR custody while awaiting their hearing. If they are still in custody beyond 90 days, ORR should conduct a best-interest determination to see if they should be released to family members or sponsors who reside in the United States; this determination should be repeated every month thereafter.

Provide court-appointed counsel. Children as young as toddlers cannot be expected to represent themselves in a formal immigration court proceeding without the benefit of legal counsel. The effect of having a lawyer is clear: Children with attorneys are more than four times as likely to win their cases, while only 1 in 10 children without an attorney currently win. Congress should provide the resources to enable the administration to appoint counsel to represent all children.

Increase staff in the immigration courts, and speed up the process. To move children’s cases through the immigration court system quickly, avoiding the multiyear backlogs, the courts must be adequately staffed and trained. Children should have their claims heard by an immigration judge no later than 60 days after arrival, and the courts should proceed on a “last in, first out” principle, hearing the cases of the most recent arrivals first. With additional resources and more immigration judges, such a change should not affect the existing immigration court caseload. This system would allow those with valid protection claims to be put on a quick path toward legal status and eventual permanent residency, rather than languishing in legal limbo. Simultaneously, this would address concerns that the current system allows children to stay in the country indefinitely.

Focus on smugglers and traffickers. Customs and Border Protection and Immigration and Customs Enforcement should focus their resources on cracking down on the smugglers exploiting these children and bringing them to the United States, rather than on low-priority, noncriminal immigrants. Going after these organized criminal elements will also require cooperation from Mexico and other Central American countries.

Develop in-country processing programs. The United States should devise a program that allows children and others with refugee claims to have their cases heard by trained officers while still living in their home countries. This process was used for refugees in East Asia during and after the Vietnam War and for Haitian refugees in the 1990s. A similar process could be set up for Central American refugees that would not preclude them from also seeking asylum if they were to make it to the United States. Such a process would help the county fulfill its international and moral obligation to protect people from being persecuted, while also helping ensure that these children do not have to make a treacherous journey to find relief.

These recommendations are not meant to be exhaustive. Instead, they sketch out the broad outline of a way forward. In the long term, more investments are needed to rebuild civil society and stop the violence in Central America. Likewise, the United States should explore the possibility of accepting the persecution of children as meeting the threshold for asylum status; currently, children are unlikely to be viewed as being targeted as a member of a “particular social group,” a necessary legal determination and prerequisite for gaining refugee status. In the meantime, the president has the authority to accelerate the process for children fleeing violence, without sacrificing fairness or due process and without changing existing law.

Marshall Fitz is the Director of Immigration Policy, Philip E. Wolgin is a Senior Policy Analyst for Immigration, and Angela Maria Kelley is the Vice President for Immigration Policy at the Center for American Progress.

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Marshall Fitz

Senior Fellow

 (Phil Wolgin)

Philip E. Wolgin

Former Managing Director, Immigration Policy

Angela Maria Kelley

Executive Director, Center for American Progress Action Fund; Senior Vice President, Center for American Progress