Securing America’s Future Act of 2018: Decimates Protection for Unaccompanied Children

The Securing America’s Future Act would force the return of children from Central America to danger in their home countries if they are unable to immediately express a need for protection when they arrive at the U.S. border. Currently, if a child is from a “contiguous country,” such as Mexico or Canada, U.S. Customs and Border Protection (CBP) can send the child back to the country of origin immediately if CBP determines the child is not being trafficked, is not at risk of trafficking, and does not express a fear of persecution if returned home. This treatment is hard on children, as many who have fled violence and trauma are understandably unable to reveal painful experiences and fears to government officers shortly after their difficult journey through the desert. Children need time and a safe space before being questioned about their journey or why they fled their home country.

The Securing America’s Future Act would deny that opportunity to all children from Central America, and elsewhere, by requiring that all children be processed through the less protective and more expedited procedures currently applied to children from Mexico and other contiguous countries.

This bill would make it harder for unaccompanied children to seek protection through the U.S. immigration system and deny them due process. Currently, an unaccompanied immigrant child must receive a full court hearing before a determination is made on whether to order the child removed. This gives the child time to tell their story in an objective hearing. The Securing America’s Future Act would mandate a screening by an immigration judge within 14 days for all children who CBP determines are not victims of severe trafficking, are not at risk of trafficking, do not express a fear of returning to home country, and are able to make an independent decision to withdraw admission to the U.S. Under this provision, many unaccompanied children would face expedited removal based on a cursory review of the child’s case, and often without the assistance of counsel.

Under the Securing America’s Future Act, unaccompanied children would be housed for extended periods of time in adult detention facilities, rather than quickly transferred to ORR, a federal agency experienced in providing child-centered care. Current law requires that unaccompanied children from non-contiguous countries be immediately transferred to the custody of ORR. ORR must then promptly place the child in the least restrictive setting that is in the best interests of the child, such as with a parent or sponsor. The Securing America’s Future Act would delay the transfer to ORR for up to 30 days, prolonging children’s exposure to adult detention facilities, which are often overcrowded and unsanitary and lack child-appropriate services.

The bill allows for ongoing detention of accompanied children in ICE facilities at the government’s discretion, risking significant psychological and developmental consequences. The bill directs that any child not deemed unaccompanied may be detained at the discretion of the DHS Secretary. The bill expressly eliminates a presumption, reflected in current caselaw and derived from an understanding of the negative impacts of detention on child development and well-being, that accompanied children should be promptly released from detention. As a result, children may languish in detention facilities for indefinite periods, and suffer long-lasting psychological and emotional effects. The bill further limits the release of an accompanied child from custody to anyone other than a parent or legal guardian.

The Securing America’s Future Act would send children fleeing gang violence back to dangerous situations based on a belief, no matter how unfounded, that the child is or was a member of a criminal gang. The bill would deem inadmissible any individual DHS “knows or has reason to believe” was or is a member of a criminal gang. The bill also adds deportability grounds for gang membership. Further, the bill subjects individuals identified as gang members to mandatory detention and bars them from accessing asylum, Special Immigrant Juvenile Status, and TPS protections.

In practice, determinations of gang membership are frequently based not on criminal convictions or proof but on mere allegations. KIND has assisted children in which DHS has falsely alleged gang membership based on incorrect assumptions about innocent behavior such as wearing a red rosary or a Chicago Bulls jersey. The availability of lifesaving protection and immigration relief should not hinge on arbitrary and potentially unsupported allegations.

The Securing America’s Future Act would cruelly separate children from their parents and make them wards of the federal government, even though capable and loving parents stand ready to care for them. Under existing ORR policy, sponsors are screened to determine whether they are capable of providing appropriate care to children and are able to ensure the child’s attendance at their court proceedings. Currently, a parent’s lack of immigration status does not preclude sponsorship of the child.

The Securing America’s Future Act would needlessly separate families by requiring ORR to provide DHS with personal information, including immigration status, for child sponsors prior to placement and directing that DHS initiate removal proceedings against any individuals without lawful presence. The bill also requires that
such information be provided for sponsors of children previously released from ORR custody. The use of the family reunification process for immigration enforcement is not only cruel and morally wrong, but also costly for the government, as children will remain in federal custody for indefinite periods and potential sponsors will hesitate to come forward.

The bill risks the return of children to abusive, neglectful, and dangerous circumstances by narrowing the availability of Special Immigrant Juvenile Status protection. Under current law, children may be granted Special Immigrant Juvenile Status if they are unable to reunify with one or both parents due to neglect, abandonment, or abuse. This bill would require children to prove that they are unable to reunite with “either of their parents.” As a result, children may be denied protection and returned to the very trauma and abuse in their home countries from which they fled.

The bill eliminates important child-sensitive protections aimed at ensuring a non-adversarial and trauma-informed setting for children asserting asylum claims. Current law provides Asylum Offices, under the auspices of U.S. Customs and Immigration Services (USCIS), with initial jurisdiction of asylum applications submitted by unaccompanied children. This procedural protection allows children to share their painful pasts in a non-adversarial and more private, informal setting than immigration court can provide, before officers specialized in the adjudication of asylum claims. This bill would eliminate USCIS’ initial jurisdiction and require that children assert claims for asylum in immigration court, where they will be questioned by a trained government attorney before an immigration judge facing significant time constraints. Facing an unfamiliar and imposing court setting, children may be reluctant or unable to fully share the circumstances giving rise to their claims for asylum. As a result, they may be ordered removed to harm in their home countries, despite significant danger and valid claims for protection.

The Securing America’s Future Act frustrates due process by prohibiting federal funding of legal counsel for individuals in immigration and removal proceedings. Immigration law is widely understood to be among the most complex areas of the law. For individuals facing deportation, and children especially, legal representation can mean the difference between receiving lifesaving protection or being returned to harm or even death. Children who are represented by counsel are five times more likely to receive legal protection than those who are not. Indeed, only 1 in 10 children without an attorney gains legal protection.

This bill may prohibit the expenditure of federal funds for legal counsel in immigration proceedings and lead to an increasing number of children facing immigration court alone, frustrating access to due process of law and the fairness of our immigration system.

The bill perpetuates false narratives criminalizing unaccompanied children and viewing with suspicion their valid claims for protection. The Securing America’s Future Act directs the Attorney General to submit biannually a report to Congress documenting “each crime for which an unaccompanied alien child is charged or convicted” following release from DHS custody.

It further directs the Attorney General to submit quarterly reports to Congress detailing the
number of asylum cases by unaccompanied children that were filed and completed, the percentage of claims granted, and the number of unaccompanied children who failed to appear for any proceedings before the immigration judge. The Secretary of Homeland Security is to submit a similar report on the total number of asylum applications by unaccompanied children filed and adjudicated, as well as the percentage of applications granted.

These provisions, when viewed in light of current efforts by the Administration to deter the arrival of unaccompanied children and rhetoric erroneously referencing legal protections for unaccompanied children as “loopholes,” reinforce negative stereotypes of unaccompanied children that may frustrate the fair adjudication of their claims for relief.