Migrant Children: Regulations, Rights, and Benefits

In the last ten years, the United States has experienced a major increase in migrant children or unaccompanied foreign minors, from Mexico and Central America, specifically from El Salvador, Honduras, and Guatemala. Hundreds of families and minors alone make their way to the southern U.S. border, to escape the horror of the violence in their countries incited by gangs.

By the time a family makes it to the border, it may seem like a relief. However, there is a lot at stake to avoid getting sent back home. For information about your specific immigration situation, talk to an experienced immigration lawyer about your case.

Immigration for Migrant Children

Being a child or young parent without economic resources in many Central American countries is not easy. There is can be an extreme influence of gangs and many minors cannot avoid being recruited by these violent groups.

Because of these threats, underage children may flee their countries of origin with or without adult supervision to the United States. Young migrants also run the risk of being victims of other crimes, including physical or sexual abuse or human trafficking.

Definition and Treatment of an Unaccompanied Foreign Minor

According to U.S. immigration law, when the Border Patrol of the Department of Homeland Security (DHS) detains unaccompanied foreign minors crossing the border into the United States, they are turned over to the Office of Refugee Resettlement (ORR).

This program is part of the Department of Health and Human Services (HHS), the federal agency of the U.S. government that immediately assumes custody and care of migrant children.

An Unaccompanied Alien Child (UAC) is defined as a child who:

• Does not have legal status in the United States.
• Is under 18 years old.
• Does not have a parent or legal guardian in the United States.
• Does not have a parent or legal guardian available to provide physical custody and care.

As of September 16, 2019, U.S. Customs and Border Protection (CBP) had detained and transferred more than 67,000 UACs to the Office for Refugee Relocation, which was a record high for the U.S.

As of March 31, 2021, there were 12,900 children in HHS care. The Biden administration hopes to reduce the number and relocate unaccompanied and undocumented immigrant children more quickly.

The ORR has several reception centers where migrant children reside while their permanent destination is determined.

The situation of these unaccompanied foreign minors is very complicated. They leave their countries fleeing violence and then arrive in a foreign place where they are detained, and sometimes separated from their parents. Some are children so young that they simply do not understand the situation, worsening their child welfare, trauma, and mental health.

The Flores Agreement of 1997: How To Proceed With Migrant Minors

The Flores Agreement determines the legal rules and procedures for dealing with unaccompanied children (minors) who cross the border into the United States, with or without their parents, and who are in federal government custody.

Flores refers to the legal case of Jenny Lissette Flores, a 15-year-old girl from El Salvador, who crossed the border into the United States to meet with her aunt. Jenny was detained, physically examined, and sent to a juvenile detention center.

The immigration office was unable to grant custody to her aunt because they were not authorized to hand a child over to a third party. The American Civil Liberties Union filed a class action lawsuit on behalf of Jenny and other minors, and the Flores settlement in 1997 was a result of this initiative.

This arrangement requires government offices, which have custody of migrant children, the following:

• Provide physical care, food, clothing, health care, medicines, education, help to identify immediate relatives in the United States, communication service according to the child’s language, English language instruction, recreation, entertainment, coordination of visits and contact with their family members, and support for family reunification.
• Shelter migrant children in a facility with necessary facilities, including a clean and safe space, with beds and adequate temperature.
• Have access to legal help and your cases must be heard by your district court.
• Quickly deliver minors to their parents, immediate relatives, or legal institution for foster care in the United States.

Family Separation: Finding Legal Help

In April 2018, the Trump administration made official the policy of “zero tolerance” for undocumented immigrants who crossed the border into the United States. Under these immigration policies, if someone crossed the border illegally they could be arrested by the border patrol and charged with a criminal act, not just a civil offense, as was the case before.

This practice brought about the separation of many families because the arrested parents were taken to adult detention centers to be legally prosecuted for their crime, while their children were taken to ORR centers as an unaccompanied minor.

As a result, thousands of families were separated and the number of migrant children arriving at ORR centers increased to historic levels.

Establishing the exact number of separated families has been a complicated task, but it is estimated that more than 2,400 families have been separated since the implementation of the “zero tolerance” policy.

Human rights and migrant children’s activists, immigration attorneys, members of Congress, and the press began denouncing irregularities regarding these minor immigrant children. In June 2018, after much political and social pressure, the Trump administration canceled the program. A district court judge ordered the families to be reunited within a period of no more than six months.

Even though the program officially ended in 2018, family separation is still happening.

Migrant Children and the Right to Legal Representation

Under the law, minors in the care of ORR centers have the right to legal representation. Many of these children even have eligibility for immigration relief from the U.S. government to help them stay in the country, through:

• Asylum.
• Visas for children who have been victims of abuse, neglect, or abandonment by their parents or legal guardian.
• Visas for victims of trafficking or specific types of crime (under the Trafficking Victims Protection Reauthorization Act).
• Adjustment of legal immigration status if they have a relative in the country who is a U.S. citizen or lawful permanent resident (green card holder) and serves as their sponsor.

Most detained migrant children and their immigrant families are unaware of these benefits and have sometimes gone to immigration proceedings without representation. Without legal service, a high percentage of migrant minors go through removal proceedings and deportation to their home country, losing the opportunity to remain in the United States legally.

The ORR recognizes that a migrant minor has the right to legal representation, and if this minor cannot pay for a lawyer, then the child can have legal counsel at no cost. Advocacy can provide assistance in the immigration system, including safeguards against deportation, interpreters, representation before the immigration judge in immigration court, and immigration review.