UNACCOMPANIED MINORS AT OUR BORDER NOT NEW

Children are arriving at the southern border in large numbers. Many are arriving “unaccompanied” — a legal designation meaning that they are not arriving with a parent or legal guardian.

The arrival in the United States of migrant children — including unaccompanied children — is not new. Such children have been seeking a new life in this country for more than a century. What is relatively new is the congressional mandate that these children receive childappropriate treatment and processing. Additionally, children arriving today are generally more vulnerable than those arriving in the past; they arrive escaping the dangers that await them back home and seeking safe haven.

Until just a few decades ago, U.S. immigration law provided very few special protections for migrant children. Children potentially subject to deportation from the U.S. were treated as

is an attorney and executive director of Casa Cornelia Law Center, a nonprofit law firm in San Diego that provides free legal representation to noncitizens eligible for humanitarian immigration protection. She lives in San Diego. adults. In the 1980s, advocates brought a case against the government on behalf of such children and, after more than a decade of litigation, the government agreed to some basic protections. It established a presumption against lengthy detention of children and a process to temporarily release detained children to safe sponsors as quickly as possible. It also established standards for keeping children safe while in immigration custody and recognized the rights that children have while in custody, such as religious exercise and access to education.

Several years later, upon creating the new Department of Homeland Security (DHS), Congress wrote much of this agreement into federal law. The federal Department of Health and Human Services (a human welfare agency) — not the newly created DHS (a law enforcement agency) — would be entrusted with the care and custody of these children as well as coordinating the expedient release to sponsors.

Subsequent legislation added protections. Most of these children would appear before an immigration judge rather than being immediately deported. While Congress did not provide counsel for these children (the law continues to assume that

children can speak on their own behalf in court), new laws at least encouraged access to attorneys. Certain procedural barriers were also removed, allowing children greater access to humanitarian protections. New processes were added to identify children who had been subjected or were vulnerable to human trafficking.

To be clear, however, Congress did not grant to these children a blanket opportunity to remain in the U.S. Being an “unaccompanied child” does not mean immunity from deportation. Children are released from government custody but remain subject to deportation proceedings (in which there is no guarantee they will have lawyers): an immigration judge determines whether children qualify to remain or not. The pathways to remaining in the U.S. are narrow, and some will be deported to their countries of origin.

Over 20 years ago, Casa Cornelia Law Center (the organization I am honored to lead) answered the urgent call to represent unaccompanied children in local government custody before the San Diego Immigration Court. We have remained committed to ensuring that no child in immigration custody in San Diego stands alone in immigration court.

Casa Cornelia has represented children across the immigration gamut. Some have been granted permission to remain because of humanitarian protections extant in our immigration law. Others, after receiving honest counsel that they are not eligible to remain in the U.S., have elected to safely voluntarily depart with the government’s agreement.

Prior to 2014, the number of children arriving was consistent, but then children began arriving in startlingly large numbers. More and more these children were not coming to the U.S. so much as fleeing their countries. Arriving children increasingly reported childhood abuse and having endured horrific violence. While the population of arriving unaccompanied children had always included some who were fleeing, this became the norm and has not changed since.

The pandemic may have created new barriers for children fleeing their countries, but their reasons for fleeing remain unchanged. During the end of the prior federal administration, children in flight did not stop arriving. Instead, when they did arrive, the prior administration quickly, silently and secretively expelled them to further dangers at home rather than providing protections the law promises them.

The current arrival of unaccompanied children is the inevitable result of children being prevented from seeking haven last year because the reasons for their flight have not been addressed. Until children are protected in their countries of origin — safe from violence inside and outside the home, able to seek redress from functioning governments — they will continue to flee. As long as children arrive at our doors, we have a moral imperative to treat them safely, justly and humanely.