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Advocates Fear the New Trump Administration Rule Will Keep Migrant Children in Detention for Even Longer

The ACLU warns that a new rule allowing the government to look into potential guardians' immigration status will leave the children with nowhere to go but detention facilities.
A mother and child await transport to a processing center for undocumented immigrants on July 24th, 2014, in Mission, Texas.

A mother and child await transport to a processing center for undocumented immigrants on July 24th, 2014, in Mission, Texas.

The Trump administration recently enacted a rule change allowing itself to review the immigration status of potential sponsors of unaccompanied minors who enter the United States without papers—and to use that information to deport them. The change will likely mean that more unaccompanied minors will languish in detention facilities for longer periods of time, rights advocates warn, as the administration comes under continued scrutiny for its treatment of immigrant children.

The American Civil Liberties Union is waiting to hear back from the Department of Homeland Security after expressing outrage in an open letter it sent Thursday that opposes the rule change.

DHS instituted the change late last week, Stephen Kang, detention attorney with the ACLU Immigrants' Rights Project, tells Pacific Standard in a phone interview. Now DHS can "screen individuals to verify or ascertain citizenship or immigration status, immigration history, and criminal history to inform determinations regarding sponsorship of unaccompanied children who are in the care and custody of [the Department of Health and Human Services] and to identify and arrest those whom ay be subject to removal," according to notice of the change published in the ACLU's letter.

DHS did not respond to Pacific Standard's request for comment on the potential ramifications of its shift in policy or ACLU's opposition to it.

When unaccompanied minors enter the country without papers, the Office of Refugee Resettlement, the arm of the Department of Health and Humans Services in charge of minors, attempts to locate the children's relatives and determine whether it can safely relinquish the minor into her or his custody. Taking into account the potential guardians' immigration status will hinder the ORR's attempts to engage those relatives, Kang warns.

"The concern we had was that it makes clear DHS is going to receive a larger universe of sponsors and people in their households," he explains. "We are concerned putting in place this information sharing is going to lead to sponsors getting deported and inhibit sponsors from coming forward to help kids. The result is going to be more children being in detention for longer."

The ORR has a "responsibility to make sure kids are promptly released to community members," Kang reminds, arguing that the rule change will make it harder for the ORR to do that.

The rule change may only serve to intensify public scrutiny over the Trump administration's controversial policies on immigrant children. The administration has come under fire in recent weeks over reports that it is separating asylum seekers from their children. Separately, the administration came under fire after Steve Wagner, the acting secretary for the Department of Health and Human Services' Administration for Children and Families, said at a Senate committee hearing in April that the department could not confirm the whereabouts of about 1,500 children released into sponsors' care.

The latter incident sparked outrage in news and social media, under the Twitter hashtag #WhereAreTheChildren. Many enraged citizens demanded answers over the children's whereabouts. But some analysts pointed out that, under an administration that rights advocates say has been especially hostile toward immigrants, it may actually harm the children for the government to more closely track them and their sponsors.

"You're asking immigration authorities in TRUMPS AMERICA to BETTER MONITOR UNDOCUMENTED CHILDREN AND THEIR FAMILIES," attorney and writer Josie Duffy Rice tweeted in a thread on the topic that went viral. "You don't want this. I promise you don't."

Following DHS's move to review information on the sponsors' legal status and potentially use it to deport them, it would seem perhaps that the scenario Duffy Rice had warned about was coming to fruition.

Even so, the ACLU's Kang says that HHS does indeed have a responsibility to make certain that the children are placed in safe homes. "We believe ORR has a statutory and moral obligation to make sure kids are placed in safe homes," he says, explaining that it is actually crucial for them to ensure the safety of their placements. But now that the process of placing them has begun to weaponize the sponsors' immigration status, it remains unclear how the ORR will successfully place the children with sponsors.

"We are really concerned about the effects this will have," Kang says.

Others echoed the view that the ORR should keep up with children after their placement, but worried about the repercussion of making placement with relatives less likely.

"Fewer sponsors will be willing to come forward, which means children will spend longer in detention," says Erika Pinheiro, the policy and technology director of the cross-border immigrant advocacy group Al Otro Lado. "When ORR does not have available bed space, children can spend weeks in CBP custody, suffering in the freezing 'hieleras' or in dog kennel-like enclosures where decent food and medical care are severely lacking. [The] ORR has housed children on military bases and in refurbished [Walmarts] due to capacity issues, conditions incompatible with the proper care of already traumatized children. Without sponsors willing to come forward, I fear we will see more parents separated from their children and deported, while their child remains in federal foster care."

With an absence of transparency around how immigrants at all are detained, it remains unclear how soon the adverse conditions faced by immigrant children left in those facilities will come to light.