This month the number of immigrant children in government custody topped 14,000, the highest levels ever documented, including 3,800 children being held in one secretive tent city alone. The mass detention of immigrant youth is reminiscent in some ways of mass incarceration of juveniles from times past.
Two decades ago, political scientist John DiIulio set off hysteria by warning of an impending influx of young “super-predators.” His theory led to zero-tolerance policies, harsh sentences and, ultimately, the rise of mass incarceration of juveniles.
History is repeating itself for immigrant youth, under President TrumpDonald TrumpMcCabe wins back full FBI pension after being fired under Trump Biden's Supreme Court reform study panel notes 'considerable' risks to court expansion Bennie Thompson not ruling out subpoenaing Trump MORE. His administration is vilifying them, calling some unaccompanied minors “wolves in sheep’s clothing,” while the government detains children in unprecedented numbers for longer periods of time. Migrant children are often defenseless in immigration proceedings, since courts have not recognized their right to court-appointed counsel; this may change, depending on how the Ninth Circuit decides a recent case.
Mass detention of immigrant youth is partly caused by a decision from the Office of Refugee Resettlement, the agency tasked with the care of unaccompanied minors, to share fingerprints of potential sponsors with immigration enforcement agencies. Recent reports reveal that Immigration and Customs Enforcement (ICE) has arrested close to 200 sponsors since April, sending a chilling effect through immigrant communities. While the administration has begun to backtrack on another policy of extreme vetting of other residents living with sponsors, they plan to continue sharing sponsors’ information.
As a result, children are being held in detention longer — for an average of 57 days, up from 34 days in 2015. This might be the immigration agency’s goal, so that children are transferred to adult jails on their 18th birthday, which happened to roughly 1,000 teenagers last year.
Meanwhile, the Trump administration is attacking existing child protections, such as the Flores settlement, which outlines minimum standards to ensure children’s safety. Under Flores, the immigration agency must place children in the “least restrictive” setting possible, releasing children “without unnecessary delay” to family, a guardian or a licensed program. The administration hopes to implement new rules to end Flores, by allowing minors to be detained for longer periods of time and with fewer protections.
As an attorney for immigrant children, I’ve seen firsthand what happens when youth — who often have experienced high levels of trauma — are detained. One of my clients, a teenager, started wetting his bed while in detention. There have been countless reports of dire consequences for children. Some have been molested; one child lost a third of his body weight; and an 18-month-old toddler died weeks after being detained, reportedly because of inadequate medical care.
The harm lasts much longer than their stay in detention. Research shows the intense stress that detained children face can disrupt “learning, behavior, immunity, growth, hormonal systems, immune systems and even the DNA.” Childhood trauma may lead to a range of health complications into adulthood, such as heart problems, cancer, stroke, diabetes, liver disease and skeletal fractures.
The government speculates detention will deter unauthorized migration. In fact, data have shown that’s not true. Perhaps this is because nearly 60 percent of children are fleeing violence and other serious harms, according to a United Nations study.
The administration also has raised concerns that children, if released, won’t appear in court. Yet, there’s a more humane and cost-effective way to ensure that children come to court. Although a majority of children appear regularly at their hearings, access to counsel makes attendance nearly perfect. According to data, 95 percent of children represented by lawyers attend their hearings. Yet in today’s immigration courts, most children are unrepresented and, more and more, children are fighting immigration cases while living in detention, to the determinant of their legal cases and their health.
In the past decade, the juvenile justice landscape shifted dramatically with the Supreme Court’s pronouncement that the state “cannot proceed as though they [juveniles] were not children.” The immigration system should follow suit, ensuring children are represented by attorneys and that they spend shorter, not longer, periods of time in detention.
As the Ninth Circuit reconsiders immigrant children’s right to court-appointed attorneys, we must remember that immigrant children are simply children. Until courts recognize children’s right to counsel, or Congress acts to protect kids, it is up to local and state governments to ensure that no child has to defend himself in immigration proceedings. To achieve more just, efficient and humane outcomes, we must end the mass incarceration of children and provide them appointed counsel in immigration court.
Laila L. Hlass is a law professor at Tulane University School of Law, where she teaches immigration law.