Unintended Consequences
Unaccompanied Alien Children
2014 witnessed an influx of unaccompanied alien children at America’s southwest border. The influx briefly captured the attention of the media, lawmakers and the public, due in part to the large number of children arriving in a relatively short period of time and in part to crowded immigration detention facilities. Public interest waned as detention facility conditions improved and the number of arriving children declined sharply in July. Though the spotlight has faded from the issue, the recent influx remains pertinent to those interested in immigration. It highlights the unintended consequences of laws that were designed to help migrants, but ultimately led to poor outcomes for those migrants.
First, a few definitions. As used in this essay, “unaccompanied alien children,” are people under 18 years old, who are not citizens of the United States, and who are arriving at the US border (or a port of entry) without a parent or legal guardian. “Alien,” as used in this essay, refers to any person who is not a US citizen or national. A “port of entry” is a land, sea or airport where people apply for legal admission to the United States.
Next, how did the influx come to be?
Millions of non-US citizens enter the US every year. Most enter through the legal immigration process — they obtain a visa from the Department of State, travel to the US, apply for admission at a port of entry, are inspected and admitted. However, some people choose to circumvent the legal process. Some do so in order to look for work or to be with family members. Some are smuggling people or illicit goods. And some are fleeing persecution and seeking refuge in the United States.
The unaccompanied alien children who arrived in early-mid 2014 were driven by a number of factors, including poverty and violence in their home countries, and, possibly, by the perception that they would be able to stay in the US once they arrived, regardless of whether or not they had a legal basis to enter the US.
And this is where immigration gets tricky.
Non-US citizens may only enter the United States with the permission of the Attorney General (who delegates this authority to the Secretary of Homeland Security). US citizens have a legal right to enter the US, but non-citizens do not. Non-citizens, aliens, must establish their admissibility to the US in order to legally enter the country. Generally, they do so by applying for a visa, traveling to the US, applying for admission and being inspected and admitted. An alien seeking asylum may request it at the border or at a port of entry.
However, not everyone who is fleeing violence or bad living conditions qualifies for asylum or for any other immigration status. A person who arrives may feel they qualify for asylum, or another form of humanitarian relief, such as the recently enacted Deferred Action for Childhood Arrival (DACA). However, unless they meet the criteria for granting an asylum claim, they do not meet the legal definition of “asylee”. If they do not qualify under another immigration category, they are not eligible to enter the country legally.
The children who arrived at America’s southwest border may indeed have been fleeing terrible conditions, but if they did not have a legal basis for entering the US or a valid asylum claim, they were not eligible to enter the country. They were eligible to be taken into custody, cared for and to be returned to their country of nationality or country of last habitual residence. And those are hard, sad facts for a lot of these kids.
So, that’s the first part of the unaccompanied alien children story. But, children lacking a legal basis for entering the US doesn’t necessarily lead to the influx of children and crowded detention conditions that captured the American public’s attention (for part of the summer).
Here’s the second part of the story — the unintended consequences of laws designed to help migrants.
One law and one legal case — the Trafficking Victims Protection Reauthorization Act of 2008 and the Flores Settlement Agreement of 1997 — were designed to protect children who are the victims of human trafficking. In very simple terms, the government is required to take unaccompanied children into its custody and provide adequate shelter, protection and basic services (such as adequate food, water, toilet facilities and medical care). In addition, the government is required to screen children for asylum claims and, while the asylum claim is pending, continue to care for the children or release them to a parent or legal guardian.
These requirements, coupled with the unanticipated number of children who arrived in a relatively short period of time and inadequate government resources to respond to the influx of children, led to the overcrowded conditions that featured prominently in the media.
While the public attention has died down, the episode highlights many of the unintended consequences of our nation’s immigration laws. Processes that were designed to protect vulnerable populations, combined with strong incentives to send children to the United States led to a highly visible crisis that was quickly mitigated (in the public arena) by improving detention conditions. However, the laws remain in effect and it is only a matter of time before we see another episode of unintended consequences.
