Protecting the human rights of child migrants and families

Our communities should act with care and compassion toward child migrants who have increasingly arrived at the border after fleeing violence and poverty in their home countries, and are attempting to reunify with their families. Unfortunately, our government has responded to this serious refugee situation by substantially increasing family detention and putting both children and families on a fast-track deportation process without legal representation. This is a grave injustice and does not reflect our national values. Instead, we should implement policies that preserve families’ and children’s domestic and international human rights protections, particularly when they are in detention; provide them with legal representation; improve community support by providing case management services to all children upon reunification; and address the driving factors that push children to make a perilous journey.

To facilitate the protection of the human rights, the Administration should:

• Allow parents who have Temporary Protected Status (TPS), which provides temporary refuge to those already in the US who cannot safely return home due to ongoing armed conflict, natural disasters, or other extraordinary circumstances, to apply for derivative TPS for their children.
• Expedite applications under the Central American Minors (CAM) Refugee/Parole Program, which seeks to provide certain minors with a legal, safe alternative to undertaking dangerous, unauthorized journeys to the United States by enabling minors affected by violence in Central America to legally reunite with their parents who are living lawfully in the United States;
• Broaden access to the CAM Program by allowing parents without legal status to file for their children to come to the United States and permitting children with viable refugee claims who do not have a parent in the United States to apply;
• Use executive authority to permit a larger number of unaccompanied children into the United States as refugees and expand the use of humanitarian parole to include children fleeing harm and/or reuniting with family; and
• End support of interdiction policies that deny children the opportunity to seek protection.

The Administration and Congress should:

• Invest in community-based and comprehensive youth violence prevention strategies;
• Make assistance to foreign police and military entities conditional on compliance with basic human rights standards, particularly in El Salvador, Guatemala, Honduras, and Mexico, and use this leverage to reduce corruption and dissuade “mano dura” policies (heavy-handed criminal law policies that violate human rights);
• Strengthen the regional systems of protection for children and migrants in Central America and Mexico, particularly in child welfare, asylum, humanitarian visa, and anti-trafficking systems;
• End economic agreements and policies that displace people and fail to uphold human and labor rights;
• Sign, adopt, and ratify the International Convention on the Protection of All Migrant Workers and Their Families and the Convention on the Rights of the Child.

The Department of Justice should:

• Exempt children from the expedited removal process, which is a summary, out-of-court removal proceeding done by a DHS officer rather than through an appearance before an immigration judge, and ensure that children can consult with legal services before accepting voluntary return;
• Ensure that children and families seeking refugee status are provided with adequate representation prior to removal or adjudication;
• Exempt families escaping violence from the expedited removal process and ensure that they can consult with legal services before accepting voluntary return or adjudication.

Department of Homeland Security should:

• End the use of family detention and utilize a range of alternatives, including placing families in community-based case management services or licensed child welfare programs that support the least restrictive form of custody, safety, and access to legal services.
• Ensure that children and other people in vulnerable situations are not exploited or abused in short-term or long-term custody. This includes creating greater oversight and accountability to prevent shackling, handcuffing, inhumane detention conditions, inadequate access to medical care, and verbal, physical, and sexual abuse by implementing public, enforceable standards for all DHS detention facilities. These facilities should be the responsibility of accountable, public entities and not that of private for-profit corporations.
• Ensure that every accompanied and unaccompanied child from contiguous countries such as Mexico is screened by licensed child welfare professionals to ensure appropriate care while in detention and adequate screening for immigration relief. Refrain from interviewing children from non-contiguous countries such as El Salvador, Guatemala, or Honduras who will be screened by licensed child welfare professionals in the custody of the Office of Refugee Resettlement. Current screening practices should also be improved so that child survivors of trafficking and persecution are effectively identified, referred for appropriate services. When appropriate, agents assist with trafficking certification.
• Clarify DHS standards for prosecutorial discretion to recognize that children are eligible for a favorable exercise of that discretion, especially when deportation is against the child’s best interests.
• De-prioritize deportations that would result in family separation.

Customs and Border Protection (CBP) should

• Implement an access policy for civil society to allow for regular oversight and monitoring of its facilities. DHS should place child welfare professionals to oversee the care and custody of all children in CBP custody.

Congress should:

• Require that the “best interests of the child” be “a primary consideration” in all procedures, actions, and decisions made by a federal agency or court re: unaccompanied children and principal child applicants, including in deportations determinations that would result in family deportation. As opposed to unaccompanied children, principal child applicants have families and are the principal applicants for relief from deportation through means such as asylum;
• In asylum cases, base the definition of “membership in a particular social group” on the immutable characteristics test first used in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) which says that membership in a particular social group can be based either on a shared characteristic members cannot change or a characteristic they should not be required to change;
• Mandate the appointment of legal counsel for all children in removal proceedings, including a mix of private pro bono representation and direct representation by appointed lawyers;
• Establish a national legal service program to provide children with information about their legal rights and conduct individual legal assessments; and
• Permit immigration judges the discretion to appoint an independent child advocate who will advocate for the best interests of the child when necessary. Unaccompanied children may require special protections given that they face legal proceedings that could lead to deportation and are without an adult to advise them and ensure their welfare.