Dean Nabsu

Dr. McCaffrey

SEL-ISSUES

03 May 2017

Better Off As a Criminal Than a Child

The U.S immigration policy in the United States did not originally hold children in

detention centers for long. Prior to 1984, any unaccompanied minors or children were able to be

released to their families awaiting an immigration court date. It wasn’t until the Salvadoran Civil

War, that the precursor to ICE, (Immigration and Naturalization Service), decided it was in the

best interest of the children to hold them in detention centers after this humanitarian crisis that

occurred. They took on the role of instant aid from the civil war, although it has manifested itself

into something far more malicious. In Whose Child Am I?: Unaccompanied, Undocumented

Children in U.S. Immigration Custody, Susan J. Terrio explains how regardless of the age of

these undocumented children, they are primarily seen first under the bias of undocumented or

illegal immigrants instead of children. As a result of these policies, children are given the same

placement, worse treatment and less rights than that of criminals. All of this is a result of

neoliberal policies that tighten borders and profit off of their deportation and detention.

One way that undocumented children are treated similarly to, if not worse than criminals,

is within these detention centers, “children as young as fourteen, who posed no security threat or

flight risk, were incarcerated with adult criminals and adjudicated youths, subjected to

handcuffing and shackling, and deprived of legal services.” (10). In the case of criminals, they

are protected and given rights under certain legislature, because they are U.S. citizens. Although,
undocumented children who are caught do not receive these same rights or services, as they fall

outside of the legislature. It was only until 1984, that the automatic detention of children became

the default response, as opposed to releasing them to parents or family members. As Terrio puts

it, “the rationale for detaining a vulnerable population became both a self-authorizing status and

a moral imperative.” The increasing number of migrants crossing also means that the industry of

border control and has grown, as there has been an increase of 424% increase in the custodial

system budget between the years 2004 and 2010(11). The majority of those held in these

detention facilities, people from Guatemala, El Salvador, and Honduras. A reported 24% of

which were under the age of 14. This is a good representation of how children are caught in the

crossfire of our immigration policy.

It was in 1985 that the Immigration and Naturalization Services were contested for their

treatment of unaccompanied children. The case used to fight the INS was that of Jenny Lisette

Flores, a fifteen year old Salvadoran girl, who was caught in Southern California. The treatment

that was questioned and later sued against was for handcuffing, strip searching her, and then

holding her captive in an INS-contracted detention center. What this case brought up, is whether

or not undocumented individuals, even children, have the right to due process, considering she

was held for two months. The only exception made for detention was to be released to a parent.

A key problem with this policy by the INS is that it is likely the parents of unaccompanied

children are too undocumented. As a result, them coming forward, or their children bringing

attention to their parents, would likely result in deportation of the whole family. These policies

are then rendered ineffective, as the children have no other option but to be in detention or be

deported. In the case of Jenny Flores, she actually had an aunt and uncle with legal status, yet the

request to be taken out of detention was denied. She also had no criminal charges and was not
dangerous. Some children within the detention center she was held in had to share bathrooms and

dormitories with both sexes. The rationale put children in the same spaces as criminals, simply

because they are undocumented was for their “best interest”. One of the lead attorneys of the

Flores case had prepared by inspecting the conditions the children were forced into commenting

“Their (INS) mindset was that ‘We have got them. We should deport them, not release

them.’”(56).

Not only were the children kept in these facilities for indefinite periods of time, but they

were subject to routine strip and body cavity searches. There were no proper hearings for

releasing some children to a responsible sponsor or adult, they were imprisoned. The opposition

to INS argued that the conditions were in no way redeemable as the best intention for the

children, nor were they lawful nor constitutional. The argument the INS made was that this was

the best way for them to be sure the children would show up for court hearings (whenever that

would come). After the INS lost the Flores case, they released Jenny Flores on bond, and then

were required to halt strip searches, provide education, visitation, recreation, and separation from

unrelated adults within the facilities. In a continuing fight to end detention of children, the INS

argued that the detention of children was justified because they did not have the resources to

investigate the households they would be released to, to check if they were suitable. On top of

that, if a child were to get harmed after being released, they claimed it would be their

responsibility. The majority of the Ninth Circuit Court refuted this claim, but it did not matter as

the Supreme Court sided with the INS, stating it was in the government’s best interest to keep the

children in custody, resulting in the INS not having to end their detention practices. “So long as

institutional custody met minimum standards of child care, the interests of the child could be

subordinated to the state’s parens patriae interest in preserving the welfare of the child” (63).
 It wasn’t until 2008 that Congress passed the Trafficking Victims Protection

Reauthorization Act, which clearly stated that these undocumented children must be placed “in

the least restrictive setting that is in the best interests of the child.”, and also allowed children

access to a child advocate. The Office of Refugee Resettlement then was able to transfer children

to their own custody, informing them of their legal rights, and also mandated they attended class

five days a week. Under the ORR, children finally received social services. Even with the ORR

present, abuse and a lack of implementation of the “least restrictive setting” is still prevalent, and

although congress acknowledges these claims of continual abuse, they have not done anything to

punish these abusers. These children continued to face similar conditions and treatment as they

did without these laws, simply because the INS (now ICE), and the government were unwilling

to enact policies condemn the individuals abusing such children, and refusing to grant these

children any rights solely due to their legal status.

To exacerbate things, when children finally do make it to their immigration court

hearings, they are often unaccompanied and unaware of their legal rights. The estimated number

of undocumented children that were had no legal representation was 50%-80% (67). The Chief

Immigration Judge, Michael Creppy, denied this claim, and when asked to explain his reasoning,

he replied “We do not have a system that can accurately give you those kinds of numbers.” (67).

Although, after Terrio interviewed some retired immigration judges, the people interpreting the

law, and sentencing people who have made transgressions to what they deem a suitable

punishment. For immigration judges, this also includes children. Many of the retired judges were

critical of the way courtroom hearings went. Commenting on a very obvious need for there to be

government-funded representation, “particularly for children with legal competency issues.”

(164). The overwhelming majority of citizen adults within the country require legal
representation to navigate and understand the law when they are taken to court, yet children are

expected and put through this without any help. There was also mention of the way judges see

the children, “We need judges who don’t see them as delinquents or criminals. Many of these

kids have been broken. They have been sold, beaten, or burned, or lived in a chicken coop. How

do we interpret the hideousness of that experience? If we are sympathetic it lowers the level of

stress. We need patience and time.” (164). An additional problem is that some judges are not up

to date with the current resources available to these children. Nikki Dryden, a former attorney for

Vera Institute, mentioned a story of a sixteen year old who had no legal representation, and had

requested to go home. Unfortunately, the judge was not informed on a government-funded

program that pays for voluntary departure, and thought the plaintiff would have to pay for the

trip himself. On top of that, there was nobody to ask for evidence, or fight against the charges

made against the child, and he was faced with deportation. The ignorance of the judge, and lack

of representation for the child led to them likely to never be able to enter the United States

legally.

Susan J. Terrio’s ethnography points out a lot of flaws within U.S. immigration policy,

and the way that it is enforced and managed within the United States. “Immigration law [is] not

designed for kids,” (164), and as shown in many of these examples, they are not treated as

children, let alone criminals. The reason for their abuse and bad treatment is simply because they

are undocumented, fall out of the lines within our very bureaucratic system. This will only

worsen with the increasing nationalistic rhetoric being spread today. As hate breeds stronger

against those considered “other”, there is an increasing need for advocates for undocumented

people of all ages. It is necessary to see these migrants as people first, or in these cases, children

first. The government must take responsibility for the consequences of their legislature.