For unaccompanied children arriving at the U.S. border , their processing is governed by two different laws: the Homeland Security Act of 2002 and the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). However, amid the current COVID-19 pandemic, the Trump Administration has used emergency measures to circumvent these laws that are intended to prevent and punish crimes against the most vulnerable.
The Homeland Security Act mandates the care and custody of unaccompanied children and the TVPRA prevents the Department of Homeland Security (DHS) from immediately deporting unaccompanied children. TVPRA effectively prevented the Trump Administration from enforcing punitive policies like the Migration Protection Protocols against unaccompanied children, but the Administration currently is claiming the pandemic as an excuse to jeopardize children’s safety.
Under the TVPRA, unaccompanied children from noncontiguous countries (countries other than Mexico or Canada); children who were determined to be a victim of human trafficking; and children with a fear of returning to their country of origin or last habitual residence, are to be transferred to the care and custody of the Department of Health and Human Services (HHS), Office of Refugee Resettlement. The new rules issued by DHS and HHS and the Centers for Disease Control and Prevention, limiting traffic along the U.S.-Mexico and entry of individuals into the U.S., were effective as of March 21st. Less than two weeks later, the Administration reportedly began including unaccompanied children in the new restrictions.
Initially, the restrictions did not apply to unaccompanied children. But on March 30th, Customs and Border Protection officials stated the emergency measures could be applied to minors with the exception of those who exhibited signs of illness or suspected trafficking. The International Rescue Committee reported three unaccompanied children have already been deported to El Salvador with an additional nine in the country’s quarantine centers. CBS News also reported that the families of four minors who presented themselves at the border were deported within days or hours.
Jennifer Nagda, Policy Director at the Young Center for Immigrant Children’s Rights stated, “We are not at a place where there is no safe space to take them. We have the capacity to safely bring children across the border, to keep them safe and to make sure they don’t present a risk of spreading the coronavirus or be exposed to the virus by others.
Democratic lawmakers from both the House and Senate Judiciary Committee were deeply troubled by reports that the DHS was not following TVPRA. In response to the reports, on March 30th the lawmakers wrote a letter addressed to Department of Homeland (DHS) Security Secretary Chad Wolf, urging DHS to stop the removal of unaccompanied children seeking asylum. In the letter, the representatives stated, “We have an obligation to ensure the health and safety of these children. Children do not have to be put in harm’s way to protect us from the coronavirus pandemic. DHS has the ability and capacity to protect both these children and the public.”
Nearly a year ago, former DHS Secretary Kirstjen Nielsen wrote a letter to congress requesting the authority to deport unaccompanied children to their home countries. Nielsen cited the inability to legally return unaccompanied children creates “another dangerous pull factor.” Moreover, Nielsen stated that implementing legislative solutions such as the deportation of unaccompanied children would help “address the root causes of the emergency.” Now, citing the concern of spreading COVID-19 into the U.S. – which leads the world in the number of known cases – the Administration is taking advantage of a threat to global public health to justify its deportation of unaccompanied children.
Update: On April 7th, Reuters reported that nearly 400 unaccompanied children have been deported since implementation of new rules. Customs and Border Protection declined to comment to Reuters.