It’s Time for Congress to Protect ‘Unaccompanied Alien Children’

Because I understand immigration and human nature, I have long been a critic of section 235 of the dubiously named “Trafficking Victims Protection Reauthorization Act of 2008” (TVPRA). It’s a loophole that’s been exploited by “smugglers [who] routinely engage in physical and sexual abuse” of unaccompanied alien children (UACs) — and by some unsavory characters in this country, as well. Congress should either close that loophole or fix it to protect the kids — assuming members have the courage to do so.

The 40-Year Saga Over UACs

This story starts in 1984, when the Western Regional Office of the then-Immigration and Naturalization Service (which detained UACs at the time) instituted a policy of only releasing detained minors to their “parent or lawful guardian”, except in “unusual and extraordinary cases”, when they could instead be released to “a responsible individual who agrees to provide care and be responsible for the welfare and well-being of the child”.

In response, three organizations sued INS in July 1985 on behalf of alien children in INS custody over not only that policy but also over the conditions in which those children were being held.

That case went through judicial review, and in March 1993 the Supreme Court considered the case, Reno v. Flores, on the question of whether INS’s regulation limiting the release of UACs violated the Due Process Clause.

Justice Scalia, writing for the majority, concluded the regulation was not unconstitutional. He noted:

The parties to the present suit agree that the Service must assure itself that someone will care for those minors pending resolution of their deportation proceedings. That is easily done when the juvenile’s parents have also been detained and the family can be released together; it becomes complicated when the juvenile is arrested alone, i.e., unaccompanied by a parent, guardian, or other related adult.

The case went back to district court and, in January 1997, the Clinton DOJ and plaintiffs entered into a stipulated settlement agreement (the Flores settlement agreement, or “FSA”) to govern the terms and conditions of UAC detention and release from INS custody.

Advocates still weren’t happy with INS detaining unaccompanied migrant children, and when Congress decided to abolish the INS and reconfigure it in the post-September 11th Homeland Security Act of 2002 (HSA), they acted.

A Democrat-sponsored committee amendment to the HSA added a new section 462 to that act, now codified at 6 U.S.C. § 279, which 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.

More importantly, however, that amendment in section 462(a) of the HSA deprived ICE (INS’s successor in alien detention) of authority over the detention, care, and release of UACs, giving it instead to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services (HHS).

The amendment’s sponsors never explained why they thought ORR would do a better job that INS had or ICE would, particularly given that up to that point, ORR — a refugee benefits agency — had no detention responsibilities whatsoever.

In the first few years of this new detention scheme, however, not many UACs were affected. As the Congressional Research Service (CRS) has reported, 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”.

Section 235 of the TVPRA

That quickly changed, however, after a now-Democratic controlled Congress passed, and President George W. Bush signed, the TVPRA.

Section 235 of the TVPRA split UACs into two groups: (1) children from “contiguous” countries (Canada and Mexico); and (2) minor nationals of “non-contiguous” countries (everywhere else).

Under that provision, DHS can return a UAC from a contiguous country 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 care and custody 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.

The number of non-contiguous UACs soared after Congress passed section 235 of the TVPRA, as parents (and more importantly smugglers) realized it essentially guaranteed that any child who could make it illegally across the line would be released into this country.

Critically, section 235 also directs ORR to then place nearly all those children with “sponsors” in the United States — usually a parent or guardian, but not always.

Not surprisingly, the number of non-contiguous UACs soared after Congress passed section 235 of the TVPRA, as parents (and more importantly smugglers) realized it essentially guaranteed that any child who could make it illegally across the line would be released into this country.

Here are the stats: According to CRS, 8,041 UACs were apprehended by Border Patrol in FY 2008, before the passage of the TVPRA, a figure that climbed to more than 19,688 in FY 2009, the year that law took effect.

The demographics of those UACs quickly changed too, plainly in response to the “non-contiguous” loophole. Among those UACs apprehended in FY 2009, 82 percent of UACs were from Mexico and 17 percent were from the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras.

As CRS notes, however: “By the first 10 months of FY2019, the proportions had reversed, with Mexican nationals comprising 12% of the 69,157 UAC apprehensions at the border and the three Central American countries comprising 85%.”

President Obama was faced with a massive surge of non-contiguous UACs at the Southwest border in FY 2014, as agents apprehended more than 68,500 of them, the vast majority from the Northern Triangle.

In response, in June 2014, he sent a letter to congressional leaders asking them to give DHS “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” (emphasis added) — that is, to close the section 235 loophole for non-contiguous UACs.

He also dispatched his vice president, Joe Biden, to Guatemala City that month to meet with regional leaders in an effort to slow the migrant children flow.

After leaving that meeting, Biden warned Northern Triangle parents not to entrust their children to smugglers, explaining: “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.”

Congress failed to act, and if responsible adults listened to the then-vice president, they didn’t heed his words for long.

Section 235 of the TVPRA remains the law, and under the Biden administration between FY 2022 and FY 2024, Border Patrol agents at the Southwest border apprehended more than 380,000 UACs, 79 percent of whom (nearly 300,000) were from “non-contiguous” countries.

ORR’s Issues

ORR struggled to handle that UAC surge, to put it politely.

Under Biden, HHS’s Office of Inspector General (OIG) issued numerous reports on vulnerabilities in ORR’s sponsor-vetting and UAC-release processes, like “Gaps in Sponsor Screening and Followup Raise Safety Concerns for Unaccompanied Children” (February 2024), “[ORR] Needs To Improve Its Oversight Related to the Placement and Transfer of Unaccompanied Children” (May 2023), and “[ORR] Needs To Improve Its Practices for Background Checks During Influxes” (also May 2023).

Even before the OIG acted, in April 2022, my colleague Jessica Vaughan warned the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security that: “Some unaccompanied minors end up staying for longer terms in lightly supervised youth shelters, foster care, or with a sponsor, and then become vulnerable to enticement into gangs and/or sex trafficking.”

Thereafter, in April 2023, Vaughan cautioned the House Judiciary’s Immigration Subcommittee that “the Biden administration, apparently unconcerned about the known risks, made a bad [UAC] situation worse by deliberately gutting many of the policies that had been in place to help avoid releasing minors to abusive situations”.

She specifically referenced in that testimony a March 2023 Florida grand jury report, which found (in her words) that:

in the last two years [ORR] has intentionally reversed certain critical procedures that helped to ensure the UACs’ safety, such as home studies and background checks on sponsors and members of their households, post-placement monitoring, fraud referrals and investigations, and more.

If anything, Vaughan pulled her punches, given that report bluntly concluded: “In reality, ORR is facilitating the forced migration, sale, and abuse of foreign children.”

The next month, ORR Director Robin Dunn Marcos was called before the House Oversight Committee’s National Security Subcommittee for a UAC hearing, and as I reported afterwards:

Among the key takeaways were that only about 37 percent of released UACs end up with a parent, and that about two-thirds of them are working full-time jobs (often without work authorization). …

Shockingly, however, Director Dunn Marcos could not (or would not) confirm in response to questioning by Rep. Andy Biggs (R-Ariz.) that her office had lost contact with “85,000 kids” it had released to sponsors. All she could say was that in 81 percent of post-release follow-up safety and welfare calls, ORR was able to make contact with the child. Meaning that in about one-fifth of UAC cases, ORR lost contact.

That hearing followed a February 2023 New York Times exposé on UACs who had been released by ORR, headlined “Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S.”

Obvious Flaws and Proposed Solutions

You’d think that after all these hearings Congress would review section 462 of the HSA and section 235 of the TVPRA, and either rescind them or at least fix the most glaring issues with the current UAC process.

Congress premised that process on three naïve (and erroneous) propositions: (1) all UACs are better off with sponsors than in government custody; (2) most adult sponsors can be entrusted with a kid; and (3) it’s in the “best interests” of alien children to come illegally with smugglers rather than to remain back home.

In its haste to move UACs out of immigration custody, Congress failed to provide ORR with any guidance on how to screen and when to deny would-be sponsors.

The criticisms about ORR’s handling of UACs should call each of those propositions into question, but nevertheless they were largely uncontested in 2002 and 2008. Consequently, the government’s duty to UACs under the HSA and TVPRA ends once they’re on the streets, as neither act makes DHS or (ironically) ORR responsible for UACs once they’re released.

ORR has few defenders, but respectfully, in its haste to move UACs out of immigration custody, Congress failed to provide the office with any guidance on how to screen and when to deny would-be sponsors.

As a result, it’s beyond cavil that children are raped, trafficked, exploited, and abused thanks to the HSA and TVPRA, and whenever the volume of UACs at the border rises, those hells compound exponentially.

And because DHS is cut out of any responsibility for the release of those kids, it’s hindered in its ability to investigate sponsors and determine whether they have any liability for bringing those children here.

As that March 2023 Florida grand jury report explains:

If any resident of Florida exposed U.S.-born children to this process, they would be justifiably arrested for child neglect or worse. We do not think children should be less-protected simply because they were born outside our borders and brought here by a government agency.

But to certain politicos and many in the media, adults who hire the smugglers Joe Biden said “routinely engage in physical and sexual abuse” are treated as though they are providing a public service.

Note that under section 274(a)(1)(v)(I) of the Immigration and Nationality Act (INA), any person who conspires with a smuggler to bring an alien here illegally commits a class D federal felony, punishable by imprisonment for up to 10 years, and if that crime results in “serious bodily injury” or death, it’s a class C felony with a sentence of up to 20 years.

If DHS throws a few would-be sponsors cum conspirators in jail for a decade, you’ll see the child-smuggling industry dry up quickly. 

There’s no exception for adults who conspire to smuggle kids here, and if DHS throws a few would-be sponsors cum conspirators in jail for a decade, you’ll see the child-smuggling industry dry up quickly. But to find them, Congress must create a role for DHS in the sponsor-screening process from the outset.

As importantly, Congress needs to amend section 235 of the INA to specify classes of individuals who are barred from sponsoring UACs. For starters, sex offenders should be off the list of eligible sponsors, as should those accused or convicted of trafficking, violent crimes, DUI, child abuse, drug offenses or any “crime of moral turpitude” — as well as those who share households with such individuals.

The best solution would be for Congress to scrap the current HSA/TVPRA process for unaccompanied children and start over.

Ideally, alien children encountered at the border would be handed over to USCIS officers to determine whether they have viable asylum or trafficking claims, and only if they do should they be placed with a sponsor here.

If UACs don’t have an asylum or trafficking claim, however, they should be transferred to their own governments for placement abroad. That’s how it works with “contiguous” kids, and I’ve never heard a complaint about that process. Even Barack Obama thought it was a good idea at one time.

The problem with expecting Congress to fix the patent defects in the UAC process is children’s issues are easily demagogued, and a UAC industry created by the TVPRA has a vested interest in the status quo. It takes courage to do the right thing in Washington, but if members can’t show courage when kids’ lives and dignity are on the line, why did they go there in the first place?