Where Have All the Unaccompanied Alien Children Gone?

Because they aren’t showing up in DOJ stats — except when their cases are dismissed

By Andrew R. Arthur on March 2, 2023

The Executive Office for Immigration Review (EOIR) — the DOJ component with jurisdiction over the immigration courts and the Board of Immigration Appeals — publishes very useful statistics. One page on EOIR’s site shows that there were just over 82,000 cases involving unaccompanied alien children (UACs) pending before the immigration courts at the end of FY 2022 — a year in which CBP encountered more than 152,000 UACs at the Southwest border. Where have all the UACs gone, and as importantly, why did immigration judges dismiss 15,000-plus cases involving UACs last year? If Congress wants to protect those kids, it needs to get answers to those questions.

UACs, in Brief. The term “unaccompanied alien child” is defined in statute 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 is clear from that definition, only alien minors without parents or legal guardians in the United States are considered UACs, but nonetheless, the federal government — and DHS in particular, lumps plenty of kids with parents and guardians here illegally in as UACs.

That definition was added to federal law by section 462 of the Homeland Security Act of 2002 (HSA), and that act is the starting point in explaining why CBP encountered more than 152,000 UACs at the Southwest border in FY 2022.

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

I refer to it as the “former INS” because it was abolished in section 471 of the HSA, when its immigration responsibilities were dispersed among various other agencies at DHS, including CBP, ICE, and USCIS.

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

As I have explained many times in the past, although I was there when that amendment was agreed to, I have no idea why jurisdiction over UACs was transferred to ORR, an office that to that point had little to no 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 retained jurisdiction over the detention of aliens generally for immigration purposes. Notably, the legacy INS units that ICE inherited did, in fact, have experience detaining, caring for, and releasing alien children.

I will concede, however, that many aliens and advocates had been critical of the manner in which INS dealt with alien children, so the sponsors likely assumed that placing those children anyplace else was a better choice. History has not vindicated that assumption.

In the first few years of this new scheme, there weren’t that many UACs affected by the switch. 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 changed, though, after Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

Section 235 of the TVPRA divvied up UACs into two separate groups: (1) children from “contiguous” countries (Canada and Mexico); and (2) minors who were 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 the care and custody of ORR within 72 hours and placed into formal removal proceedings (UACs are not amenable to expedited removal), even if they have not been trafficked and have no fear of return. ORR is then directed to place most of those children with “sponsors” in the United States.

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

Look at the stats: CRS reports that 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 number grew 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.

The only logical conclusion an objective observer can draw from reviewing these statistics is that section 235 of the TVPRA created a loophole now being exploited by those (smugglers, parents, other relatives, traffickers, the children themselves, etc.) seeking to bring UACs to the United States illegally.

If logic is insufficient, how about authority? In 2014, the editorial board at the Washington Post explained: “Inadvertently, [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.”

It’s strange verbiage because no one “enjoys” immigration court, and even fewer 12-year-olds are “trying to reach the United States” (someone else is paying the smugglers), but you get the point.

EOIR’s Stats. Which brings me back to the EOIR stats. At the end of FY 2022, there were a total of 82,034 pending cases involving UACs. Immigration judges (IJs) issued 27,474 decisions involving UACs that fiscal year, so between pending cases and completions, about 109,500 UACs were in immigration courts in FY 2022.

Last fiscal year, however, nearly 129,000 UACs were referred to ORR by DHS, as were just fewer than 123,000 UACs in FY 2021 — more than 251,000 children in total. Where did the extra 142,000-plus UACs go?

The number of “missing” UAC cases is actually much larger. EOIR reports that the median completion time for a case involving a UAC was 1,521 days — four years and two months. That means that the cases completed in FY 2022 really started sometime in FY 2018 — a year in which DHS referred just over 49,000 UACs to ORR.

Since FY 2019, DHS has referred more than 336,504 UACs to ORR. If it took four years and a couple of months to complete their cases in immigration court — on median — where are all the rest of those kids?

And the EOIR stats get stranger yet. As noted, IJs completed 27,474 UAC cases in FY 2022. Of that total, 5,774 of those completions were removal orders, 4,591 issued in absentia when the minor respondent failed to appear in court — meaning that nearly 80 percent of UAC removal orders, and 16.7 percent of IJ UAC case completions, involved no-shows.

In all honestly, in a system where it takes IJs more than four years to get to a completion, I’m surprised that the in absentia rate wasn’t higher. That said, it very well may have been.

That’s because more than half of those IJ UAC case completions — 15,053 or nearly 55 percent — were dismissals, and 4,668 (17 percent of the total) involved the IJ terminating the UAC’s case.

I can sort of understand the terminations. Normally, when an alien files an “affirmative” asylum application with USCIS and the alien gets placed into removal proceedings, jurisdiction over that asylum application shifts over to the IJ to adjudicate.

The TVPRA amended the asylum provisions in section 208 of the Immigration and Nationality Act (INA), however, to give asylum officers at USCIS “initial jurisdiction over any asylum application filed by” a UAC, even if that child is placed into removal proceedings.

That means that the asylum application with USCIS and the removal proceeding before the IJ proceed on parallel tracks, and if the alien is granted asylum by USCIS, the proper action for the IJ is to terminate the removal proceeding.

In addition, TVPRA included an entire complicated calculus for the consideration of “special immigrant juvenile” (SIJ) applications for UACs. It also amended and watered down the SIJ definition.

As my erstwhile colleague Rob Law explained in 2021:

The [SIJ] classification was created by Congress in 1990 to provide a pathway to legal status for certain alien children in the U.S. foster care system who required judicial intervention to protect the minor from parental abuse, abandonment, or neglect. The full eligibility criteria laid out by Congress for SIJ status is found at INA 101(a)(27)(J).

SIJ status is a whole separate issue (which my colleague David North discusses a lot, and appropriately so because it doesn’t make much sense), but as with UAC asylum applications, IJs must sit around and wait while USCIS adjudicates petitions for that status.

By regulation, IJs lack jurisdiction over adjustment applications (including those based on SIJ petitions) filed by “arriving aliens”, which would include UACs apprehended entering the United States illegally.

USCIS has sole authority to adjudicate and approve adjustment of status based on SIJ status in that situation, and if USCIS grants permanent resident status to a UAC who is in removal proceedings, the proper action is for the IJ to terminate the case, because the respondent is no longer removable.

The Doyle Memo. So, why were 55 percent of IJ decisions in cases involving UACs in removal proceedings dismissed? I can’t be completely certain, but I believe that the answer may be found in a 17-page memorandum issued by Kerry E. Doyle, the principal legal advisor (PLA) at ICE in April 2022.

The PLA is the de facto general counsel for that agency (I have no idea where the awkward title came from), but in any event I discussed the rather interesting past positions PLA Doyle espoused before she started calling the legal shots at the second largest federal investigative agency in the United States as well as that memo in a post shortly after the latter was released.

The Doyle memo implements a September 2021 directive issued by DHS Secretary Alejandro Mayorkas titled “Guidelines for the Enforcement of Civil Immigration Law”, which was itself vacated in June 2022 by a federal district court judge in Texas v. U.S. The administration’s appeal of that order is currently pending decision by the Supreme Court.

Even though the Doyle memo implements a directive vacated more than eight months ago, however, it remains in force, likely because it has escaped the notice of the courts and state plaintiffs in Texas.

In any event, there is a whole section in the Doyle memo that explains how ICE attorneys should dismiss cases involving aliens who are “not priorities” for enforcement under the Mayorkas guidelines, including (and likely especially) facially removable aliens who are not eligible for relief.

Yet another section explains how ICE attorneys “may” (read: “shall”) “join motions to reopen where the purpose for reopening is to dismiss proceedings to allow the [alien] to proceed on an application for permanent or temporary relief outside of immigration court”.

Dismissing cases involving aliens who have no status and no relief is a waste of government resources that simply adds to the quickly burgeoning population of illegal aliens in the United States, but that’s an issue for another day.

Reading those directives in conjunction and with the Doyle memo in toto, it’s logical to conclude that ICE is dismissing most if not all cases involving UACs with applications for asylum or for SIJ before USCIS. That’s why the dismissal rate would be so high compared to the IJ completion rate as a whole.

That’s Bad. Here’s why that’s bad. The United States is a big place, and it’s easy for the government to lose track of you here, especially if you want it to lose track of you (as most illegal aliens do) or someone else wants the government to lose track of you.

Regardless of how they got here, the United States owes a special duty of responsibility to children — all children — because they are generally more vulnerable to predation and exploitation.

On February 25, the New York Times ran an expose on UACs captioned “Alone and Exploited: Migrant Children Work Brutal Jobs Across the U.S.” Here’s the key line in that piece:

Largely from Central America, the children are driven by economic desperation that was worsened by the pandemic. This labor force has been slowly growing for almost a decade, but it has exploded since 2021, while the systems meant to protect children have broken down.

I have detailed some of “the systems meant to protect” those children above, but here’s a quick recap: DHS in its handling and transfer of UACs; ORR, in its housing and release of UACs; USCIS, in its consideration of applications filed by UACs; and the immigration court, in its adjudication of UAC cases.

I could go on and on about ORR’s UAC issues but suffice it to say that in FY 2020 — during the heartless Trump administration, UACs spent on average 102 days in ORR custody while that office found them a suitable sponsor in the United States. By FY 2022, under the progressive and benign Biden administration, that had dropped to 30 days.

Perhaps the heartless Trump administration was slow-walking ORR releases to deter UACs from entering illegally. That might have been a humane strategy, given the graphic terms then-Vice President Joe Biden used in June 2014 to describe the abuse children face on their “very perilous journey through Central America to reach the United States”.

Perhaps, however, ORR simply did a more thorough job of vetting potential sponsors before it released UACs from its custody under Trump. The Times — no friend of the 45th president — wasn’t talking about 15-year-old girls stuffing Cheerios boxes when he was in charge.

By the point UACs have been released by ORR, however, the only federal government contact they’ll have is with IJs and USCIS. At best, USCIS will see those kids a couple times, and send them on their way. But if their cases are not dismissed under some misguided sense of righteousness or (worse) efficiency, UACs will be in immigration court on the regular until they either receive permanent status in the United States or are sent home.

I was an IJ with jurisdiction over children’s cases, and I can assure you that I was very interested in their well-being, and I was far from an outlier in that regard.

If Congress really wants to “think of the children!”, it should dive deeply into how the Biden administration is handling UACs, and in particular whether it’s placing the thousands of alien children apprehended by DHS at the Southwest border per month into removal proceedings. Because hundreds of thousands of them seem to be missing from DOJ’s stats.