September 8, 2017 –The Building America’s Trust Act of 2017 (S.1757), introduced by Senator John Cornyn (R-TX) and six co-sponsors on August 3, cruelly and needlessly deprives child refugees of due process and decreases protections for the most vulnerable. The bill drastically alters due process protections for unaccompanied children and child refugees and threatens to return children to persecution and harm in their home countries.
The root causes of migration from Central America remain unresolved, and children continue to flee for their lives because their governments are unable or unwilling to protect them. By creating new procedural obstacles and eroding existing legal protections for unaccompanied children, this bill creates significant barriers to children’s access to safety in the United States. Because S.1757 undermines basic protections for extremely vulnerable children and child refugees KIND strongly urges the Senate to reject this legislation.
“This bill will roll back basic protections that ensure children who are fleeing horrific violence have access to due process and are afforded protection,” said KIND Vice President of Policy, Advocacy and Communications Cory Smith. “The ongoing crisis in Central America cannot be addressed by shutting the door to child refugees. This legislation would endanger the lives tens of thousands of children who need protection.”
The Building America’s Trust Act would directly impact children like 9-year-old Layla. Layla’s family had been targeted by a gang in El Salvador for years because they owned a small business. When Layla was only seven years old, she witnessed the gang shoot a child for selling vegetables on the wrong side of the street. Then, Layla’s 16-year-old cousin was brutally murdered. This is when her family decided it was time for her to flee. If this bill was law when Layla fled to the United States, instead of being placed immediately into the care of an experienced child welfare team and connected to an attorney to help her tell her story, Layla would have had to make a claim for protection shortly after her treacherous journey to the U.S. while in a detention facility and likely without any assistance. The bill would mandate that within seven days, a judge would have determined (either in person or by phone, and potentially in Layla’s absence) whether she could stay and seek U.S. protection or would instead be returned to her home country. The bill’s new “expedited” process would require Layla to navigate a complex legal system with tremendously high stakes just days after her traumatic journey to safety, and if unsuccessful, to return to El Salvador to face the gang that killed her cousin.
Below are six major provisions in the Building America’s Trust Act that negatively impact children:
Couching harsh treatment as “equality under law,” the bill expands the definition of “contiguous countries” to treat unaccompanied children from El Salvador, Guatemala, and Honduras as it currently does children from Mexico and Canada. Presently, U.S. Customs and Border Patrol (CBP) can return unaccompanied children from Mexico back over the border only after CBP decides that they are not at risk of trafficking and that they do not fear returning home. Many children who have fled violence and trauma are understandably unable to reveal painful experiences and fears related to their return shortly after arrival in the United States, particularly soon after a difficult journey through the desert, and to a uniformed officer who they likely fear. Children need to time and a safe space before being questioned about their journey or why they fled their home country. This bill eliminates important child-centered procedures designed to prevent returning children to danger.
Currently, unaccompanied children arriving in the United States are automatically turned over to the custody of the Office of Refugee Resettlement (ORR) to be screened by child welfare professionals and are able to seek legal protection. This legislation would require an additional screening by an immigration judge within seven days of an unaccompanied child’s arrival to determine whether the child is eligible to make their case before an immigration judge for legal protection in the United States. 
The immigration judge would also determine whether the child is likely to be admissible to the United States or eligible for immigration relief, and whether the child meets any of the bill’s new criteria related to “criminals and gang members” requiring mandatory expedited removal from the country. Within 72 hours of that proceeding—which can occur by phone, teleconference, in person, and even in the child’s absence—the immigration judge can either order the child removed from the country, if the child asserts no fear of return and is capable of making a decision about voluntary return, or refer the child to immigration proceedings to make their case for U.S. protection. Children subject to expedited removal by the immigration judge but intending to apply for asylum must pass an additional hurdle—an interview by an asylum officer to determine whether the child has a “credible fear of persecution,” defined as a “significant possibility” of establishing eligibility for asylum relief. If the child passes the “credible fear interview,” the child can then be transferred to ORR custody to continue with his or her asylum case.
Recognizing the unique vulnerabilities of unaccompanied children, the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) directs that unaccompanied children with protection concerns be immediately transferred to ORR custody, where they can receive child-centered care in the least restrictive setting possible. It provides children the protection of a full court hearing before they can be returned home which allows them time to tell their story and have it fairly considered. This bill unnecessarily delays the referral of children to ORR, and instead would keep them in short term detention facilities at the border that are wholly inappropriate for children.
This bill would separate families by preventing the release of unaccompanied children to parents who lack legal status in the United States. Under existing ORR policy, sponsors are evaluated for their ability to provide appropriate care for children and to ensure the child’s attendance at necessary court proceedings. Currently, the lack of immigration status does not preclude a parent’s sponsorship of an unaccompanied child because it ensures that the government is assessing the safest home for the child while they are going through the immigration court process. Rather than prioritizing family reunification—the hallmark of our nation’s child welfare system—this bill would deprive children of their parents and transform them into wards of the federal government for indefinite periods, even while their parents are eager and available to care for them. Apart from being morally wrong, these provisions would be very expensive for the government.
Under current law, a child is eligible for Special Immigrant Juvenile Status (SIJS) if a state court finds that the child is unable to reunify with a parent based on abuse, neglect, or abandonment, and that it is not in the child’s best interest to return to their country of origin. SIJS allows children fleeing violence or trafficking at the hands of a parent in their home country to receive protection and care from a safe and loving parent here in the United States. Under this bill, a child would have to prove the inability to reunify with either parent before becoming eligible for SIJS status. By eliminating one-parent SIJ, this bill risks sending thousands of children back to dangerous situations of trafficking and abuse—the very harms the TVPRA seeks to prevent. (Sec. 325).
Immigration law has long distinguished between juvenile offenses and adult crimes, recognizing the ongoing developmental and behavioral changes of youth. This bill would subject unaccompanied children to mandatory expedited removal, with no right to appear before an immigration judge, for certain juvenile offenses, such as those involving the use or attempted use of physical force. (Sec. 321)
The bill directs mandatory expedited removal of unaccompanied minors for past or current membership in a criminal gang. (Sec. 321) However, such determinations are not based on criminal convictions or activity, but rather, hinge on mere allegations of gang membership. ICE has indicated that gang membership may be alleged on the basis of several broad criteria, including an individual’s clothing, tattoos, and location. Errors and baseless allegations abound. Gang membership has been alleged for a range of innocent behavior, from wearing a red rosary or a Chicago Bulls jersey, to carrying a toy keychain with the number eight on it. Overreaching allegations of gang membership encourage profiling of immigrants and other minorities, and divert law enforcement resources from true efforts to combat gang violence. In many instances, the government has misidentified as gang members children who themselves are fleeing grave violence by gangs in their home countries. Children’s futures and their access to protection should not depend on haphazard guesses and unfounded assumptions. (Sec. 321; Sec. 510)
The bill directs the Department of Homeland Security to provide information about each unaccompanied child to the child’s home country in an effort “to assist such government with the identification and reunification” of children with their families. Many unaccompanied children have valid asylum claims based on their country’s inability or failure to protect them from persecution. The provision of information about children to these same governments puts children at risk of further harm and violates the confidentiality owed to asylum applicants under both domestic and international law. (Sec. 327)
For more information, please contact Cory Smith, KIND Vice President, Policy, Advocacy and Communications, firstname.lastname@example.org, 202-361-1442