Mainstream media attention has returned to the Unaccompanied Alien Children (UAC) program, through which the U.S. Department of Health and Human Services (HHS) takes custody of some kids who arrive at the border without a parent. The program got a lot of scrutiny in the mid-2000s as the number of unaccompanied minors exploded, to the point where HHS was forced to house youths in jerry-rigged shelters at military bases.
This time, the coverage is prompted by the Trump administration’s decision to start separating some children from parents upon arrival, and has been hijacked by discussion of missing children and gang-involved teens.
All of this clouds what should be a very frank discussion about how UAC is actually supposed to work, and the serious flaws in that process. Here’s Youth Services Insider’s crack at a basic explanation of what’s going on, without going too far into the minutiae.
If a Mexican child arrives at our border without a parent, Immigration and Customs Enforcement (ICE) basically turns them right around for a return home. But for “non-contiguous” countries, ICE hands them off to HHS.
Almost all of the kids from non-contiguous countries make a trek across Mexico from El Salvador, Honduras or Guatemala. Their situations are not all the same, but they are all fleeing countries where forced gang involvement, rape and violent death are real concerns for young people.
And for some reason it seems like this is talked around in the discussion: those things are wired deeply into this hemisphere’s drug trade, fueled in great part by the demand of American buyers.
HHS is responsible for providing these children with services – shelter, food, education, legal help – while the agency finds a relative, family friend or another viable sponsor to take care of them. To do this, the agency contracts with private entities that do all of the work.
And as Scott Wagner (acting head of HHS’ Administration for Children and Families) made clear in last week’s hearing on UAC, this administration’s position is that HHS involvement ends when that child leaves the contracted shelter for a family. This is correct, in that HHS custody ends once its contracted providers hand the child over to a sponsor.
That entire process is all a precursor to the true point of the program: Enabling children from these countries to make a case for asylum before a U.S. immigration court.
“They are placed into deportation proceedings,” said Sen. Dick Durbin (D-Ill.), at the Judiciary hearing. “It gives them a chance to make their case before a judge.”
It is at this juncture, the central point of UAC, that things are really not going according to plan. There are two key factors derailing a real asylum process.
First, the vast majority of children are not showing up for their day in court. By the time they are reunified with family in America, that court date has been set. A Government Accountability Office (GAO) report in 2016 found that of a sample of 13,000 decisions on UAC asylum claims, 88 percent of them were made without the child appearing for the hearing.
The failure to appear pretty much ends the case for asylum. At this point, the child is usually in the custody of a family member in America, but now in the country without documentation.
Second flaw: the children who do appear in court often do so without a lawyer. Thousands of children – mostly teens but some as young as 4 – show up in court and have no way to articulate their asylum claim.
This was true during the Bush and Obama administrations as well, but it’s getting worse under Trump. The Transactional Records Access Clearinghouse (TRAC) at Syracuse University uses federal data to chart legal representation in youth deportation proceedings (UAC is a major subset of that group). Here is the four-year trend in kids and legal representation:
- 2015: 66 percent of youths represented by lawyers
- 2016: 64 percent
- 2017: 30 percent
- 2018: 30 percent
And as Sen. Bob Menendez (D-N.J.) explained at the hearing last week, proving asylum isn’t like fighting a traffic ticket.
“Those granted asylum undergo security background checks, and those posing security threats are barred,” said Menendez. “Asylum seekers must prove a well-founded fear of persecution. And that’s no easy task.”
And to accentuate how absurd that is to do without an attorney, consider this data submitted by Durbin at a 2016 hearing:
- Percentage of unaccompanied minors without lawyers who win asylum: 15 percent
- Percentage of unaccompanied minors with lawyers who won asylum: 75 percent
Those numbers cover 2012 to 2014, and it’s possible the present success rate for kids with lawyers has shifted in one direction or another. But it’s hard to imagine why the odds would ever improve for the other group.
HHS was already struggling to provide the amount of contracted space needed for unaccompanied minors. The administration added to that burden when they started routing some of the children separated from parents into UAC.
So, how do you fix this mess? The Trump administration, and the Republican leadership in one chamber, take the view that there would be no mess if there was no program.
Republican leadership on the House Judiciary Committee have for years approved a rewrite on the rules on UAC so that the Central American kids are handled in the same fashion as Mexican minors: an ICE screening to determine if they are victims of trafficking, and for most a return home.
The Trump administration voiced support for that goal at last week’s hearing. The Senate Judiciary Committee has not yet moved such an agenda. The only Senator to introduce companion legislation in the past changed jobs in 2017: Attorney General Jeff Sessions.
The logistical problem to figure out with that plan is how to transport thousands of children back home each year, at least until the change in policy deters families from attempting the costly and dangerous trip. In Mexico, it involves buses. For Central America, it will require a lot of air travel coordinated with local officials.
The moral quandary is that the Trump administration recently ended the in-country refugee claim process for children from these countries, which the Obama administration tried to get going in hopes of stemming the UAC tide. Cutting off the UAC process without restarting the refugee option would effectively leave no chance for unaccompanied minors to reach the states.
The Democrats’ priority is to guarantee legal counsel to children for their asylum claim and deportation proceedings, in the hopes of improving their chances of legitimate standing. This is codified in the proposed Fair Day in Court for Kids Act, most recently introduced by Sen. Mazie Hirono (D-Hawaii) in March.
“These children should not be expected to represent themselves alone against the federal government, as they are some of the most vulnerable people in our legal system,” Hirono said, in a statement announcing the legislation.
Neither party seems to have a solution to the problem in the middle: As long as the Central American UAC program is running, how do we ensure that children are actually present for their day in court?