Immigration: Making Decisions In the Best Interest of the Child

The Newseum in Washington, D.C., has a permanent exhibit of Pulitzer Prize winning photographs that silences crowds and brings forth a range of emotions in people. As Pulitzer Prize winning photojournalist Eddie Adams explains, "If it makes you laugh, if it makes you cry, if it rips out your heart, that is a good picture."

As a result, pictures of vulnerable children in crisis, including refugees and immigrants, are often subjects of these prize-winning photographs. Some poignant examples include: "Refugees from Kosovo", "Haiti's Lost Girls" by Patrick Ferrell, and "Enrique's Journey" by Don Bartletti about unaccompanied children from Central America migrating to the United States.

These pictures tell a complicated story of danger, emotion, and vulnerability among children across the world that capture our attention and should move us to action. In Enrique's case, journalist Sonia Nazario tells the story of how Enrique was five years old when his mother left both him and his sister Belky behind in Honduras and traveled to the United States as an undocumented immigrant with the hope of finding a better life. Her dream was to have the children join her in the future.

But, when she was unable to delivery on that hope, Enrique chose at the age of 16 to set off on the dangerous journey from Honduras through Mexico and across the U.S. border to eventually find his mother in North Carolina. According to Nazario, "It took him eight attempts to cross through Mexico and into the United States -- a journey of 122 days and 12,000 miles."

Enrique's story, however, is just one of the tens of thousands of children that come to this country every year. For children to undertake such a journey, without their parents and under dangerous circumstances, they often do so to flee even more dangerous and desperate circumstances in their homeland. According to Wendy Young and Megan McKenna of Kids In Need of Defense (KIND):

Unaccompanied children are vulnerable before, during, and after their flight from their homelands because they lack adult protection and are unable to care for themselves properly. Many are escaping abuse, abandonment, neglect, or violations of their human rights such as forced prostitution, child marriage, female genital mutilation, and conscription. Others are fleeing gang recruitment in societies that are plagued by lawlessness and social disenfranchisement. Many come from countries experiencing or suffering the after-effects of armed conflict. In 2008, about 80% of children in U.S. custody were from Central America.

These children are crying out for safety, opportunity, and protection in this country, and their pictures and stories are powerful. And yet, as a nation, our laws often fail to recognize and treat children as people with voice, interests, and in need of protection.

The failures of immigration law to advance, or in most instances even consider the interests of children, place it far from mainstream values and legal conceptions regarding children. In particular, immigration law fails to fully recognize children as individuals with independent rights and interests, effectively and pervasively precludes children from generating immigration rights in their parents or others, and attaches punishing and lasting legal consequences to children for choices of adults in their lives or for choices that children make prior to reaching the age of discretion.

But, it is not just immigration law that fails children, as the confluence of immigration, criminal justice, and child welfare systems - referred to as the "treacherous triangle" - often interact (or fail to interact) to represent the concerns and best interests of children. In certain circumstances, Thronson argues that these laws are "expecting and accepting" of outright "harm to children."

To compound the harm and family separation issues, the United States undertook actions in immigration enforcement between 2006 and 2012 that nearly doubled deportations - again, without consideration of the interests of children. The result, as Nazario explains, is that "...immigrant families are being separated again, this time in reverse. Parents are being deported to Mexico and Central America, away from United-States-born children."

The consequences of this to children and their families can be immense. As Wendy Cervantes, my colleague at First Focus and the Center for the Children of Immigrants, and Robert Gonzales of Harvard University's Graduate School of Education have found:

Children who are separated from a parent due to their deportation face significant consequences, including the disruption that comes with relocating to a country they may have little knowledge of or remaining in the U.S. in the care of another parent, relative, or friend. In some cases, children may unnecessarily enter the U.S. child welfare system and face the risk of permanent separation from their family. A recent study by the Applied Research Center estimates that 5,100 children with a detained or deported parent currently live in foster care. Research also demonstrates that separation from a parent due to detention or deportation harms children's mental and physical health, academic performance, and economic security.

As a result, over 200 national, state, local, and religious groups have signed on to a set of principles for children in immigration reform. They make the following argument:

As the youngest and most vulnerable members of our society, children are the most deserving of protection under the law, and every child should have access to the services and resources they need to grow and thrive. Thus, any long-term solution to our immigration system must take into account the unique needs of children and protect and promote their fundamental rights and overall well-being.

The principles include calls for national policymakers to ensure immigration reform includes: (1) a direct, clear, and reasonable path to citizenship; (2) protection and promotion of children's fundamental rights; (3) ensure that enforcement efforts have appropriate protections for children; and, (4) keep families together.

Protecting children from harm and promoting their well-being should be fundamental objectives, and fortunately, some important progress has been made toward these goals. For example, the federal government has made it an increased priority in recent years to reunite unaccompanied children with parents, regardless of their immigration status, while awaiting the outcome of their status in immigration courts. Placing children with their families has been increasingly recognized as better for children than leaving them in government-funded warehouses or detention facilities without the care and attention children desperately need.

But, further improvements, although necessary, will be difficult and there is some fear policymakers could choose regressive policy options that fail children. For example, in the last month, a federal judge in South Texas, Louisiana Senator David Vitter, and the president of the union representing Immigration and Customs Enforcement officers have all condemned the practice of reuniting unaccompanied immigrant children with their parents who are known to be in the country illegally. They argue this encourages more unaccompanied children to immigrate to our nation.

However, the problem with this conclusion is that it is uninformed. Through actual interviews by the Women's Refugee Commission (WRC) with unaccompanied immigrant children, they report:

Children from Guatamala, Honduras and El Salvador cited the growing influence of youth gangs and drug cartels as their primary reason for leaving. Not only are they subject to violent attacks by the gangs, they explained, they are also targeted by police, who assume out of hand that all children are gang-affiliated. Girls also face gender-based violence, as rape becomes increasingly a tool of control.

Unaccompanied immigrant children also inform us that, even knowing of the dangers, they would most likely do it again because of the unbearable conditions in their homeland, just as Enrique did eight times. This solves nothing and, in fact, places children at increased risk and renewed danger.

As solutions, opponents of family reunification, including Senator Vitter, are arguing for stepping up family separation through increased deportations of immigrant parents (often without their children), a return to the practice of warehousing young children without parental supervision in detention facilities for months at a time, and deportation of undocumented children back to their country of origin where they face conditions that caused them to migrate in the first place.

Such "solutions" fail children. As Navario points out:

The United States is spending billions on walls that don't really keep migrants out (a University of California, San Diego, study showed that 97 percent of migrants who want to cross the border eventually get through), and on locking up and deporting people, many of whom return. Border enforcement, guest worker programs and pathways to citizenship haven't addressed the problem. Instead they have sealed in many migrants who would have preferred to circle back home, attracted temporary workers who never left, and legalized migrants who then brought relatives illegally, causing the number of unlawful migrants to grow.

As a real solution, she argues:

We can prevent this pain, and slow the flow of migrants permanently, only by addressing the "push" factors that propel migrants, especially women, to leave in the first place -- and by helping families like Enrique's avoid the heartache that his mother's exodus began a quarter-century ago.

In short, if we truly wish to solve the problem of unaccompanied immigrant children in our country, it makes little or no sense for the proposed solution to purposely separate families and increase the number of unaccompanied children both in and out of the country.

Critics of family reunification are correct about one thing, which is that there are bad parents out there and that we should not automatically engage in reunification. But again, under a standard recognizing the best interests of the child, the solution is to give children voice in their placement and to give them legal representation to make sure their needs and interests are addressed. In a country that is just one of two in the world that has failed to ratify the U.N. Convention on the Rights of the Child, this is a difficult challenge.

Put simply, when it comes to deciding the fate of children, including those captured in the Pulitzer Prize winning photos or the tens of thousands of other children just like them, policymakers should listen carefully to the voices of children and be required to at least this one very important question before they act: "Is it good for the child?"