Why Unaccompanied Children From Mexico Get a Different Legal Process

Here is a puzzle, and I will label it as a hypothetical so nobody mistakes it for a news report. Two thirteen-year-old boys, each traveling alone, are found by the Border Patrol on the same morning at the same stretch of river. One is from Tijuana, the other from a town in Honduras. Neither has a parent in the United States.

The law treats them as if they had arrived from different planets. One is likely to be screened and, absent a specific finding, returned home within a short time. The other is sent to a federal shelter, placed with a sponsor and given a hearing in immigration court that may take years. The difference is not a matter of policy memos. It is written in a statute, and a good deal of the border story of the last fifteen years runs through it.

The law and its name

The statute is the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, usually shortened to the TVPRA of 2008. President George W. Bush signed it on December 23, 2008, after broad bipartisan support in Congress. It is named for William Wilberforce, the British parliamentarian who spent decades fighting the slave trade and the institution of slavery, and the choice of name tells you what Congress had in mind: protecting people from being bought, sold and exploited.

The TVPRA is part of a series of laws, beginning with the Trafficking Victims Protection Act of 2000, that addressed human trafficking, and each reauthorization added measures. The 2008 version included a section about "unaccompanied alien children," a term the law defines, in substance, as a child under eighteen, with no lawful immigration status, who has no parent or legal guardian in the United States available to provide care and physical custody. The section answered a real concern. Children traveling alone are targets for traffickers, and the existing system, which treated many of them like adults caught crossing illegally, was not protecting them.

The core rule: contiguous versus non-contiguous

The law draws one line, and it is geographic. It distinguishes children from contiguous countries, meaning Mexico and Canada, which share a land border with the United States, from children from non-contiguous countries, meaning everywhere else.

For a child from Mexico or Canada, the statute allows a quick screening by Customs and Border Protection officers, which must take place within forty-eight hours of apprehension. The officers decide whether the child has been a victim of a severe form of trafficking, or is at risk of being trafficked if returned, or has a credible fear of persecution, and whether the child is able to make an independent decision to withdraw an application for admission and return voluntarily. If the answers are no, the child can be returned to the home country without a court hearing, through what the law calls voluntary return, though "voluntary" is a word critics point out is carrying heavy weight when the person is a minor in custody. If the screening finds a trafficking or persecution concern, or if the child cannot make an independent decision, the child is treated like the non-contiguous child and enters the full process.

For a child from any other country, the statute requires that the child be transferred to the custody of the Department of Health and Human Services within seventy-two hours of determining that the child is unaccompanied, absent exceptional circumstances. From that point, the child is not a candidate for quick return. The child is placed in removal proceedings before an immigration judge, with the right to seek relief such as asylum, and the asylum office, not the immigration court, has initial jurisdiction over any asylum application the child files. The statute also encourages access to legal counsel, to the extent practicable, though it does not guarantee a government-paid lawyer.

Read together, the two tracks reflect a judgment: that a child who can be returned directly and safely to a neighboring country with a functioning government, across a land border and often to an adjacent town, is in a different position from a child who would have to be flown or driven across a continent.

The shelter: the Office of Refugee Resettlement

The care of non-contiguous children belongs to the Office of Refugee Resettlement, ORR, a part of the Department of Health and Human Services. ORR did not begin with this population. It was created by the Refugee Act of 1980 to resettle refugees. The Homeland Security Act of 2002 transferred responsibility for the care and placement of unaccompanied children from the old Immigration and Naturalization Service to ORR, and the 2008 act then wrote rules for that care into statute. The reasoning for the 2002 change was a good one: an agency whose job is enforcement should not also be the one running a child's shelter, and the children's custodian should be a child-welfare agency.

ORR places children in shelters it funds, run by private and nonprofit organizations under federal grant. The statute directs that children be placed in the least restrictive setting that is in the child's best interest, and it sets out the principle that the goal is, in most cases, to release the child to a sponsor while the immigration case proceeds. The legacy of the Flores decree, discussed in Reno v. Flores and the 1997 Settlement That Still Shapes Family Detention, is visible here: the policy of release to a suitable family member or other adult, in a timely way, comes in part from that agreement and the later law.

Sponsor vetting

If a child is going to be released to an adult, who is the adult? ORR uses a tiered approach to sponsors. The order of preference runs from a parent or legal guardian, to another close relative, to an adult who is a family friend or has some other connection to the child, and in some cases to an adult with no prior relationship. Applications are reviewed, and the checks depend on the category. Background checks of the sponsor and the household members are part of the process, and in some categories fingerprints and in-person home studies are required. The statute directs the government to make sure the sponsor is capable of providing for the child's physical and mental well-being, and it allows post-release follow-up in certain cases.

The weakness in that system has been documented more than once, and it is not a partisan matter. A 2016 report by the Senate's Permanent Subcommittee on Investigations, led by Senator Rob Portman, examined a case in which Guatemalan teenagers who had been released to sponsors were put to work in forced labor at egg farms in Ohio, and it concluded that the agency's vetting and follow-up had failed to protect them. The Department of Health and Human Services' own Inspector General has criticized aspects of the process as well. The point is not that every sponsor is bad. Most are relatives doing a family duty. The point is that a program built to protect children from traffickers can be exploited by traffickers if the vetting is thin, and a policy that prizes speed of release has to reckon with the cost of mistakes.

The risks children face

The honest picture of the risks has two sides, and both matter.

On one side, a child alone is more exposed than anyone else. The journey, as described in A Secure Border Is the Humane Border, and Here Is the Moral Case, runs through territory controlled by criminal organizations, and children are vulnerable to extortion, abuse and trafficking along the way. A child who is held in a shelter and placed with a vetted relative is much safer than one left to smugglers.

On the other side, the system's incentives can add to the danger. If a family concludes that sending a child alone across the border is likely to result in the child's release to a relative in the United States, the family may take that risk. The pull of the policy, and not just the push of conditions at home, can put a child on the road. This is not a claim that parents are callous. Many are desperate. It is a claim that a system that rewards the journey invites it. The humane answer is not to blame the family. It is to design the legal process so that the safest course for a child, wherever the child lives, is the lawful one.

Why the difference shaped later surges

Now we come to the puzzle that gives this post its title, and I need to be careful in what I claim.

The TVPRA's two-track system created an asymmetry. A child from Honduras, Guatemala or El Salvador, arriving at the border, was ordinarily transferred to ORR and released to a sponsor, with a hearing date in the future. A child from Mexico could be screened and returned. That difference was not in the original design of the law as a way to encourage anything. It was an attempt to protect children from trafficking while recognizing that return across a land border to a neighboring state is a practical option in a way that return across a continent is not.

In the years after 2008, the number of unaccompanied children from Central America who arrived at the border rose, and in 2014 it spiked dramatically. Many officials and analysts pointed to the interaction of conditions in Central America, the expectation of release, and the legal structure of the TVPRA as factors in the surge. Others emphasized violence and poverty at home as the dominant cause. Both claims have evidence behind them, and I do not think the question can be settled with a slogan. The sound conclusion is that a law written to protect children created a procedural difference that smugglers and families have understood, and that the policy needs to be assessed with its incentive effects in mind, along with its protective effects.

I will also note the fairness point from the other direction. The rule is not unfair to Mexican children in the sense of denying them a safeguard, since the statute requires the screening for trafficking and fear of persecution. But critics, among them immigration lawyers and several child-welfare organizations, argue that the screening, done in a short window by officers whose main job is law enforcement, is not an adequate substitute for a hearing, and that some children in danger have been returned. That is a serious objection and it deserves an answer.

The reform debate

The argument about what to do falls into a few families of proposals.

One: treat everyone the way Mexican and Canadian children are treated. Under this approach, unaccompanied children from Central America could be screened quickly and, absent a finding of trafficking or persecution risk, returned to their home country in a safe, supervised way, with an official hand-off to a receiving agency. Supporters argue that it would remove the incentive to send children north and would be consistent with the principle that the child's welfare is best served by being with family at home when that is safe. Bills along these lines were proposed in Congress in 2014, though none became law, and I would ask you to check Congress.gov for the details of each.

Two: treat everyone the way Central American children are treated. Under this approach, Mexican and Canadian children would get the full process too, with the right to a hearing and a shelter. Supporters argue that it would improve the protection of children in danger, and that it would end what they regard as an unjustified difference of treatment.

Three: keep the line but strengthen the process on both sides. This is probably the most realistic path. It would involve better screening for Mexican children, by child-welfare professionals as well as border officers, stricter vetting and follow-up for sponsors, faster court dates and shorter wait times so that a child who has no claim is not left in limbo for years and a child with a claim gets a decision. It would also include working with receiving countries on reintegration for children who are returned.

I favor a version of the third, and I'd press hard on one element of it. The most important variable in the whole system is time. A child who is going to be admitted should be admitted quickly and well. A child who is going to be returned should be returned quickly and safely. The thing that does the most harm is the long middle, where a child waits in uncertainty for a hearing years away. A fast, fair process, written by Congress, would serve everyone better than the current structure.

A note on who should decide

Back to the constitutional question that runs through this whole series. Article I, Section 8, Clause 4 gives Congress the power over naturalization, and Congress has used it here, in the TVPRA, which is a real statute. That makes the reform question cleaner than in the case of the settlement agreement discussed in the Flores post, because here the rule at issue is the work of the legislature. It means the remedy is also in the legislature's hands. Any change, in whichever direction, should be debated in public and enacted by a vote, so that the voters can hold their representatives accountable. A related example of the states and the federal government bearing the costs of national decisions is in Plyler v. Doe and the Bill States Pay for a Decision Congress Never Made.

The case in brief

1. The TVPRA of 2008, signed December 23, 2008, created two tracks for unaccompanied children: quick screening and possible return for children from contiguous countries, Mexico and Canada, and transfer to federal custody and full immigration proceedings for children from non-contiguous countries.
2. Non-contiguous children are transferred to the Office of Refugee Resettlement within seventy-two hours, held in the least restrictive appropriate setting and generally released to a vetted sponsor while their case proceeds.
3. Sponsor vetting has had real failures, as the Senate's 2016 investigation of forced labor on Ohio egg farms showed, and a program built to protect children can be exploited if the checks are thin.
4. The difference between the two tracks has been cited as one factor in later surges, though conditions at home are a factor as well, and the debate is over how to balance protection with incentives.
5. The sound reform is a faster, fairer process written by Congress, with better screening on both tracks and better sponsor follow-up.

What you can do: read the unaccompanied-children provisions of the TVPRA, codified at 8 U.S.C. 1232, on Congress.gov, and write to your representative through the page for your representatives about how long a child should wait for a decision.