Bipartisan ‘Children’s Court Act of 2023’ Would Just Make the (Already Bad) Migrant Child Crisis Worse

‘Hard cases make bad law’ — and bad laws make harder cases

By Andrew R. Arthur on November 3, 2023

On November 1, a bipartisan group of House members and senators introduced the “Immigration Court Efficiency and Children’s Court Act of 2023” (ICECCA). It’s the latest attempt to “help” unaccompanied alien children (UACs) who have entered the United States without parents or guardians by skewing “justice” in immigration court in their favor. At first blush, the goal of that bill — helping migrant children — might appear laudable, but in practice, it would encourage even more adults to pay smugglers to bring migrant children here illegally, exposing those children to unacceptable dangers. That said, the bill’s fundamental premises are wrong, because those kids shouldn’t even be in immigration court.

Biden’s Unaccompanied Alien Child Crisis. The crisis that has gripped the border since Joe Biden took office has deleteriously impacted national security, U.S. sovereignty, state and local budgets, public schools, healthcare, wages — the list goes on. Probably, however, the worst effects have been imposed on the migrant children themselves.

Between February 2021 — Biden’s first full month in office — and the end of September, Border Patrol agents at the Southwest border have apprehended more than 392,000 UACs — 327,303 of them from further abroad than Canada and Mexico. For reasons I will explain below, that latter figure for agents’ apprehensions of UACs from “non-contiguous” countries is the most critical one.

That’s more UAC encounters in just 31 months than in the prior seven fiscal years, FY 2014 to FY 2020 (366,251), and if you took just the kids from non-contiguous countries apprehended at the Southwest border since Biden took office and put them into a single school district, it would be the sixth largest in America, just behind Miami-Dade County in Florida (with an enrollment of 347,366).

That’s bad for any number of reasons, not least of which are the dangers and inhumanity those children face at the hands of smugglers during their illegal journeys to the United States, which were delineated by then-Vice President Joe Biden during a visit to Guatemala City in June 2014:

The United States, to state the obvious, is greatly concerned by the startling number of unaccompanied minors that — children and teenagers who are making a very perilous journey through Central America to reach the United States. These are some of the most vulnerable migrants that ever attempt — and many from around the world attempt — to come to the United States. They’re among the most vulnerable. And the majority of these individuals rely — we estimate between 75 and 80 percent — rely on very dangerous, not-nice, human-smuggling networks that transport them through Central America and Mexico to the United States.

These smugglers — and everyone should know it, and not turn a blind eye to it — these smugglers routinely engage in physical and sexual abuse, and extortion of these innocent, young women and men by and large.

And they profit from the misery of these children and teenagers; these desperate, desperate young people. [Emphasis added.]

Smugglers haven’t become better people since Biden made that statement nine-plus years ago, as a grand jury convened at the request of Florida Gov. Ron DeSantis (R) to examine the effects of UAC migration revealed in a presentment it handed down on March 29:

Those here in Florida who are sending money and other aid to facilitate this process should know what it is they are funding. At nearly every juncture, travelers forging the Darien Gap and other notorious routes must pay handlers, armed militia groups, native tribes, local warlords, gangs, or drug cartels hoping to obtain safe passage. In many cases the toll is exacted in lives, labor, or sexual abuse. They face disease, famine, drought, a perilous jungle trek, insects, and predators both human and animal. [Emphasis added.]

The jurors also referenced a July 2022 survey completed by the Florida Department of Children and Families (DCF), after that agency had interviewed 49 of the 13,000 UACs who arrived in Florida in 2022, in what were referred to as “just two Florida placements”. According to DCF:

The children interviewed knew very little about the individuals that transported them during their journey to the border [and] disclosed that the individuals who transported them were “Coyotes.” One child disclosed that during her journey several members of her group were robbed, attacked by gang members, decapitated, and raped. The child disclosed that she was one of the victims of rape. [Emphasis added.]

Things aren’t much better for many of those children once they are released into the United States. As the jurors explained, some:

are coerced into prostitution or sexual slavery; some are recycled to be used as human visas by criminal organizations; some are consigned to relatives who funnel them into sweatshops to pay off the debt accumulated by their trek to this country; some flee their sponsors and return to their country of origin; some are abandoned by their so-called families and become wards of the dependency system, the criminal justice system, or disappear altogether. [Emphasis added.]

Similar findings appeared in a series of New York Times exposés beginning in February.

“The Homeland Security Act of 2002” and “TVPRA” Debacle. Alien minors are suffering these abuses and indignities largely because prior legislative efforts to “help” them encouraged those children to enter illegally — or more precisely, encouraged their parents, guardians, and smugglers to facilitate their illegal entries to the United States.

The first is the Homeland Security Act of 2002 (HSA), which at section 462 defined the term “unaccompanied alien child” as:

a child who — (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom — (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.

As that definition makes clear, only alien minors without parents or legal guardians in the United States are considered UACs by statute, but the federal government — and DHS in particular — lumps in plenty of kids with parents and guardians here illegally as UACs.

As its name suggests, HSA was the law that created DHS, but prior to the establishment of that department, the former Immigration and Naturalization Service (INS) was responsible for detaining, caring for, and releasing alien children.

It’s the “former INS” because it was abolished in section 471 of the HSA, with its various immigration duties dispersed among her agencies at DHS, including CBP, ICE, and USCIS.

Responsibility to detain, care for, and release UACs wasn’t retained by any agency within the newly created DHS, however. An amendment to the HSA transferred authority over those children to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services.

It’s not clear why jurisdiction over UACs was transferred to ORR, an office that up to that point had little experience in detaining, caring for, or releasing anyone, let alone children. There was little discussion about the amendment itself, and no discussion at all as to why ORR was a better fit than ICE, which did retain jurisdiction over the detention of aliens generally for immigration purposes.

That said, many aliens and immigrants’ advocates had been critical of how INS dealt with alien children, so the sponsors likely assumed that placing those children anyplace else was a better choice. The grand jury’s findings belie that assumption.

In the first few years this new protocol was in place, however, not many UACs were affected. According to the Congressional Research Service (CRS), the number of UACs apprehended by DHS and referred to ORR in the early 2000s “averaged 6,700 annually and ranged from a low of about 4,800 in FY 2003 to a peak of about 8,200 in FY 2007”.

That quickly changed, however, after Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

Section 235 of the TVPRA separated UACs into two groups: (1) children from those contiguous countries (i.e., Mexico and Canada); and (2) minor nationals of non-contiguous countries (everywhere else). Under that provision, a UAC from a contiguous country can be returned home if the child has not been trafficked and does not have a credible fear of return.

UACs from non-contiguous countries, however, must be transferred to ORR’s care and custody within 72 hours and placed into removal proceedings (UACs aren’t amenable to expedited removal), even if they haven’t been trafficked and have no fear of return. ORR then places most of those children with “sponsors” in the United States — often the parents or guardians who paid the “very dangerous, not-nice, human smugglers”.

Not surprisingly, after Congress passed that provision, apprehensions of UACs from non-contiguous countries soared, as parents (and more importantly smugglers) realized section 235 of the TVPRA all but ensured that any child who could make it illegally here would be released into this country to rejoin his or her family.

Here are the statistics: According to CRS, in FY 2008, the fiscal year before the TVPRA was passed, CBP encountered fewer than 10,000 UACs at the Southwest border.

By FY 2009, when that bill was signed, that figure rose to around 20,000 UACs, 82 percent of them Mexican nationals, and just 17 percent from the non-contiguous “Northern Triangle” countries of El Salvador, Guatemala, and Honduras.

The number of UACs entering illegally kept growing thereafter, with Border Patrol apprehending more than 68,500 of them in FY 2014. By that point, however, just 23 percent of UACs came from Mexico and 77 percent from the Northern Triangle.

Any objective observer would conclude from reviewing these statistics that section 235 of the TVPRA created a gap in our laws that is now being exploited by those seeking to bring UACs to the United States illegally (smugglers, parents, other relatives, traffickers, the children themselves, etc.).

The logic was obvious even to the editorial board at the Washington Post, which in August 2014 stated: “Inadvertently, [the TVPRA] has encouraged thousands of Central American children to try to reach the United States by granting them access to immigration courts that Mexican kids don’t enjoy.”

That was two months after President Obama asked congressional leaders to reform the system to give “the DHS Secretary additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador” — that is, to plug the “non-contiguous” loophole.

Congress did nothing, and both the UAC amendments in the HSA and in section 235 of the TVPRA remain in place today.

The Bipartisan but Bad ‘‘Immigration Court Efficiency and Children’s Court Act of 2023’’. Instead of repealing those bad laws, however, Sens. Michael Bennet (D-Colo.) and Lisa Murkowski (R-Alaska) and Reps. Dan Goldman (D-N.Y.) and Maria Salazar (R-Fla.) are doubling down on Congress’ prior mistakes by introducing the ICECCA.

The thoughts and instincts behind the bill are sound: Alien children, particularly those of tender years, lack the capacity to participate meaningfully in removal proceedings; court proceedings can be overwhelming even for adults, but especially so for children; and unlike in criminal cases, alien respondents in immigration court aren’t guaranteed free legal counsel.

The ICECCA attempts to remedy these issues by assigning UAC cases to specially trained immigration judges who will hear those children’s claims in proceedings that “utilize child-appropriate procedures” allowing for “maximum participation of child respondents and promot[ing] due process” at which “the best interests of the child may be considered in adjudicating motions, forms of relief, or any other judicial decision requiring a discretionary analysis”, with plenty of coordination on free legal assistance.

The ICE attorneys arguing the government’s side of those UAC respondents’ cases must also “receive, from governmental and nongovernmental experts in child development, child psychology, and children’s immigration law, initial training upon appointment and annual supplementary training regarding” on such topics as “child-sensitive questioning techniques” and “trauma-informed interviewing and adjudication methods”.

That a significant portion of that trauma will have resulted from Congress’ prior botched attempts to “help” those alien children passes unmentioned.

There are a number of tells early on in that bill that immigrant advocates played a large role in its drafting, including a requirement that those specially assigned immigration judges have “substantial experience working with children in judicial or other settings” and “possess and have demonstrated a commitment to ensuring the fair administration of justice through child-appropriate court procedures”.

I was an immigration judge who handled UAC claims, had 14 years of immigration-law experience under my belt when I took the job, was a father, and was coaching three different youth teams in two different sports. Would that count as “experience working with children”? Probably not.

As for “ensuring the fair administration of justice”, if DOJ is hiring lawyers who don’t possess that attribute to be immigration judges already, it should probably reconsider its recruiting practices.

Another tell is a “confidentiality” provision that would bar ORR from sharing information about the UACs in its custody and their potential sponsors with either the immigration judge or DHS (absent consent from the UAC or the sponsor, and the UAC’s or the sponsor’s attorney); about those children with DHS for purposes of immigration enforcement; and (most bizarrely), about UACs with immigration judges and DHS “for purposes of relief from removal”.

There are national-security and law-enforcement exceptions to those confidentiality bars, but they’re perfunctory at best and would only likely apply in the most extreme situations. If this sounds like it suborns perjury and chills critical information-sharing, you’re on the right track.

Oh, and there’s an exception allowing ORR to share information about those children so that they can receive means-tested public benefits (of course).

“The Children. Remember the Children.” Speaking of immigrants’ advocates, Sen. Bennet’s office quoted several of them in a press release lauding the merits of the bill. That included the following quote, from the executive director of the National Advocacy Center of the Sisters of the Good Shepherd:

The children. Remember the children. Children should not have to leave home. Children should not have to come to a foreign land. Children should not be forced to work. Children should not be trafficked. Children should not get lost in the system. But they do.

That statement is a bit equivocal; does the executive director mean that scenarios in which UACs are “leaving home”, coming to the United States, being “forced to work”, being “trafficked”, and getting “lost in the system” are inevitable, regardless of what the U.S. government does? Or that it would be better for them to stay home and avoid those other issues?

If it’s the latter, I could not agree more, though if it’s the former (which almost definitely is the intent), not only is there no evidence supporting her assertions, but in fact all the evidence goes the other way.

Remember the Washington Post quote about how the TVPRA “has encouraged thousands of Central American children to try to reach the United States”? You can imagine the impact a special tribunal staffed by judges who “possess and have demonstrated a commitment to ensuring the fair administration of justice through child-appropriate court procedures” will have.

UACs Should Not Be in Immigration Court to Begin With. When I was an immigration staffer on Capitol Hill, I had extensive discussions with my Democratic counterparts in the Senate who were then working on what would become the TVPRA.

Even at the time I understood the loopholes it would create and the incentives it would offer to parents and guardians who were considering whether or not to pay those rapacious smugglers to bring their kids here, and offered what seemed to me to be the logical alternative: taking those children out of immigration court altogether, and simply having their cases adjudicated by a neutral arbiter at USCIS while they were in DHS’s custody and under that department’s protection.

Formal removal proceedings make sense in the case of an adult alien, who can enter pleadings, present their cases, and seek any available relief (with or without the assistance of counsel).

They make no sense — none whatsoever — in the case of UACs, particularly those of tender years, because that basic competency would not apply. Consider the following, from Fox News in March 2022:

Border Patrol agents in the Del Rio Sector in Texas rescued a small child who they say had been left on a riverbank by human traffickers.

"Another 4 y/o girl (same age as the one who recently drowned) was found on the riverbank after a smuggler carried her across & left her there (no parents to be found)," Chief Border Patrol Agent Jason D. Owens tweeted Tuesday." The child is now safe thanks to our agents."

How exactly would I, as an immigration judge, adjudicate that four-year-old girl’s case? How would I explain the nature of the proceedings? The rules against offering false testimony? I would look like an idiot even placing that child under oath.

What the ICECCA is attempting to do is to paste over all of the flaws of the removal proceedings process as it applies to UACs by, essentially, biasing the process in their favor. Which, as explained above, would simply encourage more parents to pay more smugglers and result in more unspeakable violence being inflicted on those kids.

There would be issues in placing UAC decisions in the hands of USCIS adjudicators, especially considering facts that have emerged about one of them of late. But laws that twist the concept of justice and make the U.S. government a willing participant in child smuggling schemes are, by no definition, “in the best interests of the child”.

There’s a well-known legal maxim, “Hard cases make bad law”. In this case, a bad law would make hard cases even harder — and lure more migrant children for smugglers to molest and abuse.